2021 WI 2

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP2419-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Angel Mercado,

 Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 391 Wis. 2d 304,941 N.W.2d 835

PDC No:2020 WI App 14 - Published 

OPINION FILED: January 20, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 26, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee 

JUDGE: Jeffrey A. Conen 

JUSTICES:

ROGGENSACK, C.J., delivered the majority opinion for a unanimous 

Court. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs 

filed by Scott E. Rosenow, assistant attorney general; with whom 

on the brief was Joshua L. Kaul, attorney general. There was an 

oral argument by Scott E. Rosenow.

For the defendant-appellant, there was a brief filed by 

Esther Cohen Lee, Milwaukee. There was an oral argument by 

Esther Cohen Lee. 

An amicus curiae brief was filed on behalf of Wisconsin 

Association of Criminal Defense Lawyers by Robert R. Henak, 

Ellen Henak, and Henak Law Office, S.C., Milwaukee.
2021 WI 2

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP2419-CR

(L.C. No. 2016CF3679)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Angel Mercado,

 Defendant-Appellant.

FILED

JAN 20, 2021

Sheila T. Reiff

Clerk of Supreme Court

ROGGENSACK, C.J., delivered the majority opinion for a unanimous 

Court. 

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review the court 

of appeals' decision1 that reversed the circuit court's2

conviction of Angel Mercado based on its determination that the 

video-recorded forensic interviews of Mercado's victims were 

inadmissible. On appeal, the State urges us to reverse the 

court of appeals arguing that the victims' video-recorded 

 

1 State v. Mercado, 2020 WI App 14, 391 Wis. 2d 304, 941 

N.W.2d 835.

2 The Honorable Jeffrey A. Conen of Milwaukee County 

presided.
No. 2018AP2419-CR 

2

forensic interviews were admissible under the normal procedures 

of Wis. Stat. §§ 908.08(1)-(6) (2017-18)3 or under the residual 

hearsay exception found in Wis. Stat. § 908.03(24) by way of 

Wis. Stat. § 908.08(7). 

¶2 We conclude that Mercado forfeited several of his 

objections to the admissibility of the forensic interviews. 

Specifically, Mercado forfeited his contentions that: (1) the 

circuit court erred by not watching the victims' forensic 

interviews in their entirety prior to admitting them and (2) the 

circuit court erred by permitting N.G. to testify prior to the 

jury watching her forensic interview. Additionally, although 

Mercado objected to the admissibility of N.G.'s video-recording 

under Wis. Stat. §§ 908.08(2) and (3), we conclude that her 

video-recording is admissible under § 908.08(7), based on the 

residual hearsay exception found in Wis. Stat. § 908.03(24). 

Therefore, we conclude that the circuit court did not 

erroneously exercise its discretion when it admitted the three 

video-recorded forensic interviews during Mercado's trial. 

Accordingly, the court of appeals' decision is hereby reversed 

in full and has no precedential value. 

I. BACKGROUND

A. Factual Background

¶3 Mercado was arrested in August of 2016 for sexually 

assaulting N.G., L.G. and O.G., who were ages four through seven 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2018AP2419-CR 

3

at the time of the assaults. The victims and their mother, 

C.C., lived with Mercado during that time. C.C. had known 

Mercado since 2011 and she and her children moved in with him so 

that she could assist him with his day-to-day activities (e.g., 

banking, appointments, medication, etc.). 

¶4 C.C. learned of the assaults on August 11, 2016, while 

she was driving with N.G., her youngest daughter. After hearing 

a song lyric that went "I want to lick you up and down," N.G. 

said from the backseat "[t]hat's what he does." C.C. asked N.G. 

who "he" was; N.G. told her "Viejo." Viejo is Spanish for "old 

man" and is a nickname the victims and others used for Mercado.

¶5 When C.C. and N.G. returned home, C.C. asked L.G. if 

anyone had been touching her. L.G. said yes. She too told her 

mother that Mercado was the person who touched her. Finally, 

C.C. waited for O.G., who at the time was out with Mercado, to 

return home. She asked O.G. "has [Mercado] been touching you?" 

O.G. said that "[y]es he does" and that the last time it 

happened was "[t]he day before yesterday."

¶6 C.C. asked N.G. and L.G. where Mercado had touched 

them. N.G. responded "down there" and pointed to "[h]er private 

area." L.G. said to C.C. that "he's been touching them in their 

private area and licking them." According to C.C., "private 

area" or "private part" are terms that the family uses to refer 

to the vagina area.

¶7 C.C. took all three girls to the hospital that night. 

The hospital staff did not find any physical evidence of the 

assaults; however, each victim individually repeated her 
No. 2018AP2419-CR 

4

allegations to the hospital staff. For example, N.G., without 

being prompted, said "Viejo keeps licking me on my butt. I hate 

him." When asked why she was at the hospital, L.G. responded 

"To see if I'm ok. Vie[j]o has been touching me everywhere."

¶8 On August 16, 2016, C.C. took N.G., L.G. and O.G. to 

the Sojourner Family Peace Center in Milwaukee where they 

underwent forensic interviews with Officers Patricia Klauser and 

Danillo Cardenas. Before asking about what happened to them, 

the officers took the time to ascertain whether N.G., L.G. and 

O.G. understood the difference between right and wrong or the 

truth and a lie. 

¶9 N.G. and L.G. initially had difficulty articulating 

that difference. For example, Officer Cardenas asked N.G. "what 

happens when somebody says something that's wrong and an adult 

finds out about it?" N.G. said she did not know. N.G. also 

said it would be both wrong and "not wrong" to call a pillow a 

wall. Conversely, when asked if she thought it was important to 

tell what is right, N.G. nodded affirmatively. 

¶10 Likewise, L.G. initially told Officer Klauser it would 

be the truth if someone said that Officer Klauser's black pants 

were red. L.G. also said that she did not know if it was 

important to "tell what really happened." However, she said it 

would be "wrong" if someone said that Klauser's pants were red 

when they were black. 

¶11 O.G. told Officer Klauser that kids who lie at school 

get "put . . . in time-out." She also stated that it would be a 

lie to say that Officer Klauser's black pants were red. 
No. 2018AP2419-CR 

5

¶12 During N.G.'s forensic interview, she told Officer 

Cardenas that "[Viejo] . . . always . . . touch[ed] [them]" and 

that Mercado licked her and L.G. "on the butt." Officer 

Cardenas showed N.G. a body diagram and had her point to where 

Mercado touched her. She pointed to the buttocks on the 

diagram, and Officer Cardenas circled the spot of the diagram 

that corresponded with N.G.'s response. 

¶13 Officer Klauser interviewed L.G. and O.G. Similar to 

N.G., L.G. told Officer Klauser that "[Viejo] touched [her] in 

[her] butt and [her] 'pee-pee', and on [her] two 'T-T's[']." 

She told Officer Klauser that "[Viejo] comes in [her] 

room . . . and then he walked [her] in the basement-then he 

pulled [her] pants down." Officer Klauser showed L.G. a similar 

body diagram and had L.G. put an 'X' wherever Mercado touched 

her. L.G. drew an 'X' on the chest, pubic area and buttocks of 

the diagram. 

¶14 Finally, O.G. told Officer Klauser that Mercado "was 

touching [her] everywhere. And he did [it to] [her] two little 

sisters." Specifically, O.G. said that Mercado was "touching 

[her] in . . . the private part" and that Mercado's hands were 

"[u]nder [her] clothes." As with L.G., O.G. told Klauser that 

the assaults happened in the basement of their home. Officer 

Klauser also had O.G. put an 'X' on the diagram. She drew an 

'X' on the pubic area of the body diagram.

¶15 The State filed a criminal complaint against Mercado 

based upon the information obtained during the victims' forensic 
No. 2018AP2419-CR 

6

interviews. After learning of the criminal complaint against 

him, Mercado surrendered to law enforcement.

B. Procedural Posture

¶16 The State charged Mercado with two counts of first 

degree sexual assault of a child, sexual intercourse with a 

child under 12 years old contrary to Wis. Stat. § 948.02(1)(b) 

and one count of first degree sexual assault of a child, sexual 

contact with a child under 16 years old contrary to Wis. Stat. 

§ 948.02(1)(d).4

¶17 Before trial began, the State, pursuant to Wis. Stat. 

§ 908.08(2)(a), informed Mercado and the circuit court of its 

intent to introduce the video-recordings of the victims' 

forensic interviews into evidence. In a pretrial hearing 

regarding the video-recordings' admissibility, Mercado objected 

to the introduction of N.G.'s and L.G.'s video-recordings. 

Specifically, Mercado alleged that N.G. "evinces in this 

interview . . . zero ability to be able to tell the examiner the 

difference between truth and a lie." Mercado raised the same 

objection regarding L.G. The State disagreed. It acknowledged 

that "[N.G.] does have some trouble with the examples that she's 

given." Nonetheless, the State argued that the video-recording 

showed that she understood the importance of telling the truth. 

 

4 While the jury was deliberating, the State moved to amend 

count one to first degree sexual assault of a child, sexual 

contact with a child under 13 years old contrary to Wis. Stat. 

§ 948.02(1)(e).
No. 2018AP2419-CR 

7

Mercado did not object to the introduction of O.G.'s forensic 

interview. 

¶18 The court agreed to watch "the first few minutes of 

each of the videos" to determine whether N.G. and L.G. 

understood the difference between the truth and a lie as 

required by Wis. Stat. § 908.08(3)(c). The State also cited a 

portion of N.G.'s video-recording wherein N.G. corrects one of 

Officer Cardenas's statements as "important context" for her 

understanding. The court agreed to watch that portion of the 

video-recording as well. 

¶19 After reviewing the "relevant portions" of the videorecordings, the court determined that N.G. had "some 

acknowledgement of knowing what it means to tell the truth and 

what it means to not tell the truth." Similarly, the court 

determined that "there's far more in [L.G.'s] interview that 

goes toward the importance of telling the truth." Therefore, 

the court allowed the State to introduce both video-recordings. 

Mercado again raised an objection to N.G.'s video-recording at 

this juncture; he did not renew his objection to L.G.'s videorecording. The court overruled Mercado's objection. 

¶20 Mercado's case continued to trial in January of 2017.5 

There, the State introduced the video-recordings of their 

 

5 The court declared a mistrial in Mercado's initial trial 

because the translators involved would not have been able to 

translate the forensic interviews in real time for Mercado. The 

court ordered the videos be transcribed before the case moved 

forward.
No. 2018AP2419-CR 

8

forensic interviews which were admitted into evidence.6 The 

State also provided the jury with transcripts of the videos. 

Mercado did not object to either O.G.'s or L.G.'s videorecordings. After each video, the State called each victim to 

the stand to testify. 

¶21 L.G. testified consistent with what she told her 

mother, what she told Nurse Susan Kanack at the hospital and 

with what she said during her forensic interview. Specifically 

she testified that "[Mercado] was pulling our pants down, 

pulling mine down, and then he was doing stuff to our private 

parts." She clarified that "stuff" meant licking. When asked 

why she put Xs on the drawing during her interview L.G. 

responded, "Because he was doing nasty stuff." She testified 

that "he" meant Viejo——Mercado.

¶22 O.G. had a more difficult time on direct examination; 

she said she was scared. However, she made it clear that she 

remembered Officer Klauser, made Xs on the drawing, and told 

Klauser the truth when they talked. On cross-examination O.G. 

reiterated that she was told to tell the truth and that she 

talked to Officer Klauser about Mercado.

¶23 Finally, and before the State showed N.G.'s videorecording, the court called N.G. to "get her to speak loudly 

enough and to respond to everyone's questions." Mercado did not 

object to the order of testimony, but moved to prevent N.G. from 

 

6 The State also introduced each victim's body diagram and 

their medical records without objection.
No. 2018AP2419-CR 

9

testifying "because she's not a competent witness because of the 

truth and lack-of-truth issue." The court overruled Mercado's 

motion stating that "[t]here's no such thing as competent 

witnesses anymore . . . it's up to the jury." Thereafter, 

Mercado agreed to "give it a try and see where it goes." The 

court stated that "[i]f there's some indicia of understanding of 

telling the truth, some, then I think that becomes an issue for 

credibility issues." 

¶24 The court called N.G. to the stand and entered into 

the following colloquy with her:

THE COURT: . . . do you know the difference 

between the truth and a lie?

[N.G.]: No.

THE COURT: Do you know what a lie is? A lie is 

when you say something that's not right. Do you 

understand that?

[N.G.]: (Nods.)

THE COURT: Okay, good. I'm going to ask you 

just a few questions, and you just help me out with 

what you know, okay? If I said that I was wearing a 

green robe, is that right or not?

[N.G.]: No.

THE COURT: It's not right? Why?

[N.G.]: Because it's not.

. . . .

THE COURT: Is it green?

[N.G.]: No, black.

THE COURT: It's black?
No. 2018AP2419-CR 

10

[N.G.]: Yeah. 

THE COURT: Okay. So that is a lie that this is 

green, right? Yes or no?

[N.G.]: No.

THE COURT: Is it true that this is green?

[N.G.]: No.

THE COURT: Okay, so then it must be a lie, 

right? Yes?

[N.G.]: Yes.

¶25 The State asked N.G. several similar questions to 

ascertain her ability to comprehend the difference between the 

truth and a lie. This attempt continued when the trial resumed 

the next morning. The court entered into a colloquy with N.G. 

that resembled the one it entered into the day before. This 

time, N.G. answered yes to the court's question "[y]ou have to 

tell us the truth, right?" She also said yes when asked if she 

promised to tell the truth. On direct examination, she said 

that she remembered talking to Officer Cardenas and that she had 

seen him before.

¶26 On cross-examination N.G. answered "no" to most of 

defense counsel's questions regarding whether she remembered 

Officer Cardenas or told him "serious stuff." Mercado argued 

that this obviated any meaningful opportunity for crossexamination. The court disagreed with Mercado noting its 

concern was that N.G. would not answer any questions on the 

stand at all. The court stated, "Meaningful opportunity for 

cross-examination means ask questions and whatever answers there 
No. 2018AP2419-CR 

11

are, those are the answers that everyone's stuck with with that 

particular witness . . . ." The court told Mercado's trial 

counsel that she would have an opportunity for further crossexamination after the video was shown to the jury. The jury 

then heard testimony from Officer Cardenas and watched N.G.'s 

video-recording. Despite being afforded the opportunity, 

Mercado did not request any further examination of N.G. after 

the jury saw her video. 

¶27 Mercado moved to dismiss the charge related to N.G. 

"based on the statements on the witness stand and the statements 

in the video." The court denied the motion finding that a prima 

facie case had been made and N.G.'s statements on the stand came 

down to credibility. The jury returned a guilty verdict on all 

counts.

¶28 Mercado subsequently moved to vacate his convictions. 

Mercado alleged the circuit court made several errors during 

trial. He alleged that the circuit court erred by (1) not 

watching the three forensic interviews in their entirety before 

admitting them into evidence; (2) conflating N.G.'s ability to 

testify as a credible witness with the truthfulness requirement 

of Wis. Stat. § 908.08(3)(c); (3) permitting N.G. to testify 

before her forensic interview was played for the jury; and 

(4) admitting the transcripts of the forensic interviews because 

they were not certified. The State argued that the court met 

the statutory requirements of Wis. Stat. §§ 908.08(2) and (3) 

and, even if it had not, all three videos were admissible under 

Wis. Stat. § 908.08(7) via the residual hearsay exception found 
No. 2018AP2419-CR 

12

in Wis. Stat. § 908.03(24). The State further argued that 

N.G.'s video was admissible as a prior inconsistent statement 

and any error in admitting the transcript was harmless. The 

court agreed with the State and denied Mercado's motion for 

postconviction relief. 

¶29 Mercado appealed to the court of appeals reprising his 

postconviction arguments. The court of appeals agreed with 

Mercado. It held that the circuit court contravened Wis. Stat. 

§ 908.08(2)(b) by not watching the forensic interviews in their 

entirety before admitting them into evidence. State v. Mercado, 

2020 WI App 14, ¶41, 391 Wis. 2d 304, 941 N.W.2d 835. It also 

held that N.G. and L.G. did not demonstrate the requisite 

understanding of truthfulness for the court to have satisfied 

§ 908.08(3)(c). Id., ¶44. Further, it held that the circuit 

court erred in the order in which it received evidence under 

§ 908.08(5)(a). Id., ¶57. It held that the circuit court, 

under State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703 

N.W.2d 727, was not permitted to allow N.G. to testify prior to 

playing her video-recording. Mercado, 391 Wis. 2d 304, ¶57. 

Finally, the court of appeals held that because the circuit 

court did not comply with §§ 908.08(2) and (3), the videorecordings were not admissible as residual hearsay and N.G.'s 

video-recording was not a prior inconsistent statement. Id., 

¶49.

¶30 The State contended that Mercado forfeited his 

objections related to O.G. and L.G. because he did not timely 

object to the admission of either O.G.'s or L.G.'s video-
No. 2018AP2419-CR 

13

recording.7 In a footnote, the court of appeals chose not to 

apply Wis. Stat. § 901.03(1)(a) forfeiture to Mercado's 

objections because it believed the rule to be one of judicial 

administration. Id., ¶32 n.6.

¶31 We granted the State's petition for review. On 

review, we determine: (1) whether Mercado forfeited all of his 

objections relating to O.G. and L.G. and one argument related to 

N.G. by not raising them at trial, in his postconviction motion 

or on appeal, and (2) whether N.G.'s video-recording is 

admissible under the residual hearsay exception. We also 

determine the proper interpretation of Wis. Stat. §§ 908.08(2) 

and (5). 

II. DISCUSSION

A. Standard of Review

¶32 Whether a party properly preserved an objection for 

purposes of appeal is a question of law that we review 

independently. State v. Agnello, 226 Wis. 2d 164, ¶9, 593 

N.W.2d 427 (1999). Questions of statutory interpretation are 

questions of law that we review independently. State v. 

Wiskerchen, 2019 WI 1, ¶16, 385 Wis. 2d 120, 921 N.W.2d 730.

 

7 As it related to Mercado's contention that the circuit 

court did not make the requisite finding of L.G.'s understanding 

of the truth under Wis. Stat. § 908.08(3)(c), the State argued 

on appeal that, although Mercado preserved the issue by 

objecting in the pretrial hearing, he did not raise that issue 

on appeal and therefore conceded the circuit court's finding. 

The dissent agreed that Mercado conceded that point. See

Mercado, 391 Wis. 2d 304, ¶94 (Fitzpatrick, J., dissenting). 
No. 2018AP2419-CR 

14

¶33 Whether N.G.'s video-recording is admissible as 

residual hearsay requires us to apply Wis. Stat. § 908.03(24) to 

undisputed facts; that is a question of law that we review 

independently. See Warehouse II, LLC v. DOT, 2006 WI 62, ¶4, 

291 Wis. 2d 80, 715 N.W.2d 213. Further, we "will not reverse a 

lower court decision where that court has exercised its 

discretion based on a mistaken view of the law if the facts and 

their application to the proper legal analysis support the lower 

court's conclusion." State v. Sorenson, 143 Wis. 2d 226, 250, 

421 N.W.2d 77 (1988).

B. Forfeiture

¶34 We first examine whether Mercado forfeited all of his 

objections as they relate to O.G. and L.G. and one objection as 

it relates to N.G. by not objecting at trial, raising an issue 

in his postconviction motion or raising an issue on appeal. If 

Mercado did forfeit his objections, the State argues that the 

court of appeals erred by directly reviewing and reversing the 

alleged errors to which Mercado did not object. We conclude 

that, under Wis. Stat. § 901.03(1), Mercado forfeited several of 

his objections by either not raising them during his trial or 

raising an issue on appeal. First, Mercado did not object to 

the court's showing of O.G.'s video-recording at any stage until 

he moved for postconviction relief. Additionally, although 

Mercado objected to the admissibility of L.G.'s video-recording 

during a pre-trial hearing, he did not renew his Wis. Stat. 

§ 908.08(3)(c) argument relating to L.G. on appeal to the court 

of appeals. Finally, Mercado did not object to the court 
No. 2018AP2419-CR 

15

permitting N.G.'s testimony prior to showing her videorecording.8

¶35 Forfeiture occurs when a party fails to raise an 

objection.9 State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 

761 N.W.2d 612. We have espoused important reasons why courts 

should abide by the forfeiture rule. Those rules include, for 

example, allowing circuit courts to correct errors in the first 

instance, providing circuit courts and parties with fair notice 

of an error and an opportunity to object, and preventing 

"attorneys from 'sandbagging' errors" by not raising them during 

trial and alleging reversible error upon review. State v. 

Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.

¶36 In the context of admitting or denying admission of 

evidence, forfeiture is contemplated by statute. Wisconsin 

Stat. § 901.03(1) provides that, "Error may not be predicated 

upon a ruling which admits or excludes evidence unless a 

substantial right of a party is affected and . . . [i]n case the 

ruling is one admitting evidence, a timely objection or motion 

to strike appears of record . . . ." Two things are required 

 

8 Mercado also failed to object to the admission of the noncertified transcripts of the victims' forensic interviews. 

However, the court of appeals did not reach a conclusion on that 

argument, Mercado, 391 Wis. 2d 304, ¶59 n.9, and Mercado did not 

renew that argument before us. Therefore, we do not address the 

transcripts. 

9 Forfeiture, the failure to assert a claimed right, is to 

be distinguished from "waiver," which occurs when a party 

affirmatively relinquishes a right. State v. Ndina, 2009 WI 21, 

¶¶31-32, 315 Wis. 2d 653, 761 N.W.2d 612.
No. 2018AP2419-CR 

16

before an appellate court may reverse evidentiary 

errors: (1) the violation of a party's substantial right10 and 

(2) an objection or motion to strike. 

¶37 In this context, reviewing courts generally are 

limited to three exceptions to the forfeiture rule. First, Wis. 

Stat. § 901.03(4) permits reversal of unobjected-to errors when 

a reviewing court finds plain error.11 Additionally, appellate 

courts may reverse unobjected-to errors in the interest of 

justice or due to ineffective assistance of counsel.12 See Wis. 

 

10 When a circuit court erroneously admits evidence that 

affects a substantial right of a party and the party benefitted 

fails to show beyond a reasonable doubt that the admitted 

evidence did not contribute to the verdict, reversible error may 

occur. State v. Monahan, 2018 WI 80, ¶33, 383 Wis. 2d 100, 913 

N.W.2d 894. 

11 Plain errors are those that are "so fundamental that a 

new trial or other relief must be granted." Virgil v. State, 84 

Wis. 2d 166, 191, 267 N.W.2d 852 (1978) (citation omitted). 

"[T]he plain-error doctrine should be reserved for cases where 

there is the likelihood that the erroneous introduction of 

evidence has denied a defendant a basic constitutional right." 

State v. Sonnenberg, 117 Wis. 2d 159, 178, 344 N.W.2d 95 (1984).

12 Although provisions relating to forfeiture are codified 

in Wis. Stat. § 901.03, forfeiture, as a doctrine of judicial 

administration, is grounded in common law. See Village of 

Trempealeau v. Mikrut, 2004 WI 79, ¶¶15-16, 273 Wis. 2d 76, 681 

N.W.2d 190. It is common law that permits appellate review of 

unobjected-to errors in certain circumstances. See, e.g., State 

v. Counihan, 2020 WI 12, ¶¶28, 32, 390 Wis. 2d 172, 938 N.W.2d 

530 (permitting review of an unobjected-to error due to 

ineffective assistance of counsel). The legislature must 

explicitly abrogate common-law exceptions in the text of the 

statute if it intends to change the common law. Waukesha Cnty. 

v. Johnson, 107 Wis. 2d 155, 162, 320 N.W.2d 1 (1982) ("The 

canons of construction provide that a statute does not abrogate 

or change any principle or rule of common law unless it is so 

clearly expressed as to leave no doubt of the legislature's 
No. 2018AP2419-CR 

17

Stat. § 752.35 (discretionary reversal when it appears that the 

full controversy has not been fully tried or there is a 

miscarriage of justice); State v. Avery, 2013 WI 13, ¶38, 345 

Wis. 2d 407, 826 N.W.2d 60 ("The supreme court and the court of 

appeals may set aside a conviction through the use of our 

discretionary reversal powers"); see also State v. Erickson, 227 

Wis. 2d 758, 768, 596 N.W.2d 749 (1999) (declining to reach a 

forfeited issue but rather "analyz[ing] the [forfeiture] within 

the ineffective assistance of counsel framework"). 

¶38 Upon a review of the record, we cannot identify a 

single instance during the trial in which Mercado objected to 

O.G.'s video-recording; he therefore forfeited his objection in 

regard to its admissibility. In addition, although he objected 

to L.G.'s video-recording during a pretrial hearing, he did not 

renew his objection in his postconviction motion or during 

appellate proceedings.13 Finally, even when Mercado objected to 

 

intent." (footnote omitted)). 

13 Mercado is correct that he properly preserved his 

challenge to L.G.'s video-recording for purposes of appeal by 

objecting during his pre-trial hearing. See State v. 

Bustamante, 201 Wis. 2d 562, 571, 549 N.W.2d 746 (Ct. App. 1996) 

(holding that a defendant need not renew at trial an objection 

that the defendant lodged against a motion in limine in order to 

properly preserve it for appeal). However, he did not raise 

that issue in his postconviction motion or before the court of 

appeals. The State argues that because Mercado did not dispute 

the State's forfeiture argument on appeal, Mercado conceded the 

argument. In his dissenting opinion, Judge Fitzpatrick agreed. 

We agree as well. When a party does not respond to an argument, 

we may deem that argument conceded. Waukesha Cnty. v. S.L.L., 

2019 WI 66, ¶42, 387 Wis. 2d 333, 929 N.W.2d 140.
No. 2018AP2419-CR 

18

the admission of N.G.'s video-recording under Wis. Stat. 

§§ 908.08(2) and (3), he did not contend it was error for N.G. 

to testify before her video until he moved for postconviction 

relief. Once again, he failed to bring this evidentiary matter 

to the circuit court's attention in a timely manner, thereby 

forfeiting his objection. We are uncertain why the court of 

appeals chose to ignore the multiple forfeitures in this case. 

To the extent that there are defenses related to the 

admissibility of O.G.'s and L.G.'s video-recordings, we conclude 

Mercado forfeited those arguments and there was therefore no 

error in the circuit court admitting either video-recording.

¶39 However, having reached the above conclusion, we must 

nevertheless address Wis. Stat. § 908.08 because the court of 

appeals chose to ignore forfeiture and to directly review and 

reverse based on the alleged errors. In so doing, the court of 

appeals misinterpreted subsections of § 908.08.

C. Wisconsin Stat. §§ 908.08(2) and (5)

¶40 As an out-of-court statement, a child's statement 

during a forensic interview is hearsay if it is offered at trial 

for the truth of the matter asserted. See Wis. Stat. 

§ 908.01(3). However, "an out-of-court statement, even though 

hearsay, may be admissible if it fits within a recognized 

exception to the hearsay rule." Virgil v. State, 84 Wis. 2d 

166, 185, 267 N.W.2d 852 (1978). 

¶41 Video-recordings of a child's statements are 

admissible if the child is available to testify and the child's 

statements fall into one of the provisions of Wis. Stat. 
No. 2018AP2419-CR 

19

§ 908.08. The statutory exception serves the important purpose 

of "'minimiz[ing] the mental and emotional strain of 

[children's] participation [at trial].'" State v. Snider, 2003 

WI App 172, ¶13 n.6, 266 Wis. 2d 830, 668 N.W.2d 784 (quoting 

1985 Wis. Act 262, § 1). In addition, the legislature enacted 

§ 908.08 to "make it easier, not harder, to employ videotaped 

statements of children in criminal trials and [other] related 

hearings." Id., ¶13. It is with this background in mind that 

we discuss § 908.08's requirements.

1. Viewing Wis. Stat. § 908.08 Video-Recordings

¶42 When a party introduces a child's statement in a 

video-recording, the offering party and the court must comply 

with the procedures set forth in Wis. Stat. §§ 908.08(2)(a) and 

(b). First, the party intending to introduce a child's recorded 

statement "shall file . . . an offer of proof" that shows 

certain information relating to the video and provide that offer 

of proof to other parties. § 908.08(2)(a). Next, the court 

"shall conduct a hearing on the statement's admissibility [and] 

[a]t or before the hearing, the court shall view the statement." 

§ 908.08(2)(b). Finally, at the hearing, "the court . . . shall 

rule on objections to the statement's admissibility." 

§ 908.08(2)(b). 

¶43 Determining how much of a child's video-recording that 

a circuit court is required to review under Wis. Stat. 

§ 908.08(2)(b) requires us to interpret § 908.08(2)(b).14 

 

14 We agree with the State that "statements" would not 

include portions of videos such as a black screen with no audio, 
No. 2018AP2419-CR 

20

Statutory interpretation begins with the language of the 

statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the plain 

language is clear, we stop the inquiry. Id., ¶45. "Statutory 

language is given its common, ordinary, and accepted meaning, 

except that technical or specially-defined words or phrases are 

given their technical or special definitional meaning." Id. 

When statutory language is ambiguous, we go beyond the plain 

language. Id., ¶47. The court of appeals determined that the 

plain language of § 908.08(2)(b) requires a circuit court to 

review a child victim's recording in its entirety before 

admitting it into evidence. We disagree. 

¶44 Wisconsin Stat. § 908.08(2)(b) requires a circuit 

court to conduct a hearing on the "statement's admissibility." 

In Wis. Stat. ch. 908, the word "statement" is defined using 

general terms. A statement is "(a) an oral or written assertion 

or (b) nonverbal conduct of a person, if it is intended by the 

person as an assertion." Wis. Stat. § 908.01(1). This general 

definition does not help us in interpreting the question 

presented, which is whether the circuit court is obligated to 

review everything that is said on a recording or some lesser 

amount. Instead, to answer that question, we look beyond the 

general definition of "statement" and look to the context in 

 

static, or video of an empty room, but that is not where the 

contest is here.
No. 2018AP2419-CR 

21

which the term "view the statement" is used to determine the 

scope of Wis. Stat. § 908.08(2)(b).

¶45 The context in which a statutory term appears is 

important to its meaning. Kalal, 271 Wis. 2d 633, ¶46. The 

term, "statement," appears preceding Wis. Stat. § 908.08(3), 

which sets criteria for admitting the recording of what a child 

has said. Those 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. 

Therefore, we interpret the extent of what a circuit court must 

view in § 908.08(2)(b) in light of the obligations that 

§ 908.08(3) places on the circuit court. Stated otherwise, the 

scope of the court's review under § 908.08(2)(b) is driven by 

the obligations the court must satisfy in § 908.08(3). 

¶46 Recordings of children's testimonies will differ 

depending on the facts of the case and the attributes of the 

child. Therefore, the circuit court will need to exercise its 

discretion in determining how much of each recording it must 

review under Wis. Stat. § 908.08(2)(b) in order to be able to 

make the findings required by § 908.08(3). Here, the circuit

court fulfilled its § 908.08(2) obligations because it viewed 

the amount of the video-recordings necessary to make § 908.08(3) 

findings, and therefore, we conclude that the court 

appropriately exercised its discretion in deciding not to review 

the entire recording. 

¶47 Accordingly, we decline to adopt the court of appeals' 

bright-line rule that a circuit court must view a Wis. Stat. 
No. 2018AP2419-CR 

22

§ 908.08 video-recording in its entirety in every case. Rather, 

the decision on how much of a § 908.08 video-recording a circuit 

court is to review is limited to those portions necessary to 

make the requisite findings under Wis. Stat. § 908.08(3); this 

is a discretionary decision made on a case-by-case basis. See, 

e.g., State v. Huntington, 216 Wis. 2d 671, ¶18, 575 N.W.2d 268 

(1998) (noting that the excited utterance hearsay exception is 

fact-dependent and declining to create a bright-line rule for 

that exception). 

2. Child Witnesses Testimony

¶48 We also determine the appropriate interpretation of 

Wis. Stat. § 908.08(5) as it relates to the order in which 

circuit courts receive testimony. Here, the court of appeals 

held that the circuit court erred by permitting N.G. to testify 

before the jury saw her video. Again, we disagree. The purpose 

of § 908.08(5)(a) is to direct what happens immediately after a 

child's recorded forensic interview is shown, not what happens 

before that showing. 

¶49 Wisconsin Stat. § 908.08(5)(a) states:

If the court or hearing examiner admits a recorded 

statement under this section, the party who has 

offered the statement into evidence may nonetheless 

call the child to testify immediately after the 

statement is shown to the trier of fact. Except as 

provided in par. (b), if that party does not call the 

child, the court or hearing examiner, upon request by 

any other party, shall order that the child be 

produced immediately following the showing of the 

statement to the trier of fact for cross-examination.
No. 2018AP2419-CR 

23

Whether this statute precludes a circuit court from permitting a 

child to testify prior to the showing of the child's videorecording is a matter of statutory interpretation. 

¶50 We conclude that the plain language of Wis. Stat. 

§ 908.08(5)(a) relates to what occurs immediately after a 

child's recorded statement is shown. It does not affect what 

happens before the video-recording is presented because 

§ 908.08(5)(a) says nothing about events preceding the finder of 

fact viewing such a video-recording. It permits the offering 

party to "call the child to testify immediately after the 

statement is shown to the trier of fact." Upon the request of 

another party, § 908.08(5)(a) requires that "the court or 

hearing examiner . . . shall order that the child be produced 

immediately following the showing of the statement . . . for 

cross-examination." Notably absent from either of those 

sentences is any reference to what testimony should or should 

not occur prior to showing the video-recording. As such, we 

decline to accept the court of appeals' proffered limitation. 

See County of Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293, 759 

N.W.2d 571 ("We will not read into the statute a limitation the 

plain language does not evidence."). As § 908.08(5)(a) does not 

control what occurs prior to the finder of fact viewing a videorecording of a child's statement, we conclude that permitting 

N.G. to testify beforehand fell under the circuit court's 

general authority to reasonably control the "mode and order 

of . . . presenting evidence" under Wis. Stat. § 906.11.
No. 2018AP2419-CR 

24

¶51 Here, the court of appeals said that it found support 

for its conclusion in its opinion in State v. James. See

Mercado, 391 Wis. 2d 304, ¶57. We are unpersuaded. In James, 

the court of appeals was not asked whether a child may testify 

before his or her video-recording is shown. Rather, the court 

was tasked with determining whether the circuit court 

erroneously exercised its discretion when it refused to show a 

child's video-recording before the child testified based on the 

circuit court's concern that if the child subsequently refused 

to say anything on the stand a Crawford violation would occur 

thereby requiring the court to declare a mistrial.15 James, 285 

Wis. 2d 783, ¶4. The court of appeals reversed the circuit 

court and held that the statutory procedure of having a child 

witness available to testify at trial after the video-recording 

is shown was a nondiscretionary obligation. Id., ¶12. The 

court of appeals held that the statutory procedure satisfies the 

Confrontation Clause as long as the child testifies. Id., ¶11. 

¶52 We agree with this interpretation of Wis. Stat. 

§ 908.08(5)(a). However, it does not follow that a child is not 

permitted to testify before his or her video-recording simply 

because a child witness is not required to do so. We agree with 

the court of appeals statement in James that § 908.08(5)(a) 

"does not impermissibly interfere with the functioning of the 

judiciary and constitutes an appropriate exercise of shared 

 

15 Crawford v. Washington, 541 U.S. 36 (2004).
No. 2018AP2419-CR 

25

judicial and legislative power," and therefore, the circuit 

court was required to follow § 908.08(5)(a). Id., ¶¶20, 25. 

¶53 To the extent that James has been interpreted as 

concluding that Wis. Stat. § 908.08(5)(a) precludes circuit 

courts from also calling a child witness before a videorecording is shown, that interpretation is erroneous. James did 

not so hold. Section 908.08(5)(a) is limited to the procedure a 

circuit court must follow after a child's recorded statement is 

shown to the trier of fact.

D. The Residual Hearsay Exception

¶54 Finally, we address the admissibility of N.G.'s videorecording under the residual hearsay exception, Wis. Stat. 

§ 908.03(24). We begin by addressing whether N.G.'s videorecording is admissible under Wis. Stat. § 908.08(7). 

¶55 Wisconsin Stat. § 908.08(7) permits circuit courts to 

admit a child's recorded statement "that is hearsay and is 

admissible under this chapter as an exception to the hearsay 

rule." When a party introduces a child's video-recording under 

§ 908.08(7), the video-recording's admissibility is not limited 

by the requirements of §§ 908.08(2) and (3). Snider, 266 

Wis. 2d 830, ¶12. Here, the applicable hearsay exception is the 

residual hearsay exception found in Wis. Stat. § 908.03(24). 

The residual hearsay exception permits the admission of "[a] 

statement not specifically covered by any of the foregoing 

[hearsay] exceptions but having comparable circumstantial 

guarantees of trustworthiness." § 908.03(24). 
No. 2018AP2419-CR 

26

¶56 We have set out five factors that courts look to in 

determining whether a video-recording of a child's statement 

meets circumstantial guarantees of trustworthiness: 

First, the attributes of the child making the 

statement should be examined, including age, ability 

to communicate verbally, to comprehend the statements 

or questions of others, to know the difference between 

truth and falsehood, and any fear of punishment, 

retribution or other personal interest, such as close 

familial relationship with the defendant, expressed by 

the child which might affect the child's method of 

articulation or motivation to tell the truth. 

Second, the court should examine the person to 

whom the statement was made, focusing on the person's 

relationship to the child, whether that relationship 

might have an impact upon the statement's 

trustworthiness, and any motivation of the recipient 

of the statement to fabricate or distort its contents.

Third, the court should review the circumstances 

under which the statement was made, including relation 

to the time of the alleged assault, the availability 

of a person in whom the child might confide, and other 

contextual factors which might enhance or detract from 

the statement's trustworthiness.

Fourth, the content of the statement itself 

should be examined, particularly noting any sign of 

deceit or falsity and whether the statement reveals a 

knowledge of matters not ordinarily attributable to a 

child of similar age. 

Finally, other corroborating evidence, such as 

physical evidence of assault, statements made to 

others, and opportunity or motive of the defendant, 

should be examined for consistency with the assertions 

made in the statement. 

Sorenson, 143 Wis. 2d at 245-46. Courts are to consider the 

facts of each particular case and "no single factor [should] be 

dispositive of a statement's trustworthiness." Id. at 246.
No. 2018AP2419-CR 

27

¶57 Upon consideration of the Sorenson factors in this 

case, we conclude that N.G.'s statement has circumstantial 

guarantees of trustworthiness such that it is admissible under 

the residual hearsay exception. 

¶58 First, N.G. was four years old at the time of the 

assaults. As we stated in Sorenson, "a child at such a young 

age is unlikely to review an incident of sexual assault and 

calculate the effect of a statement about it." Id. N.G.'s age 

"tend[s] to support the veracity of [her] report of sexual 

abuse" by Mercado. Id. Additionally, she had a close 

relationship with Mercado having lived with him and spent time 

with him outside of the house. See Huntington, 216 Wis. 2d 671, 

¶25 ("[T]he defendant and Jeri maintained essentially a fatherdaughter relationship since she was three years old."); see also

Snider, 266 Wis. 2d 830, ¶18 (noting that the victim "thought of 

Snider as an uncle"). Finally, despite N.G.'s difficulty 

explicitly stating that she understood the difference between 

the truth and a lie, "[c]onfusion and unresponsiveness under 

these circumstances may be accorded less weight . . . unless 

deliberate falsity is otherwise shown." Sorenson, 143 Wis. 2d 

at 247. So, although she had trouble articulating the 

difference between the truth and a lie, there is simply no 

evidence that N.G. deliberately fabricated her statement. The 

first Sorenson factor weighs in favor of admitting the videorecording.

¶59 Second, N.G. made her statement to a police officer. 

Similar to the social worker in Sorenson to whom the victim made 
No. 2018AP2419-CR 

28

her statement, Officer Cardenas had experience conducting these 

types of forensic interviews and did not appear to utilize 

coercive interviewing techniques.16 Id. at 247-48 (noting that 

the social worker "had experience with counseling and child 

sexual abuse cases" and that we perceived no evidence of a 

motive to coerce the victim to inculpate her father). He 

interviewed her in his official capacity as a police officer. 

See Huntington, 216 Wis. 2d 671, ¶28. We detect no motive to 

coerce N.G. to implicate Mercado nor any motive to have her 

fabricate her assertions. Officer Cardenas's relationship with 

N.G. weighs in favor of admitting N.G.'s video-recording. 

¶60 Third, the circumstances under which N.G. made her 

statement support its reliability. Again, N.G. made her 

statement during a one-on-one interview with a police officer at 

a neutral location. Additionally, although difficult to 

pinpoint, the timing of the statement in relation to the 

assaults is at least a neutral factor. The assaults occurred 

between June and August of 2016. This puts her statement in a 

range of potentially a few days to one or two months after the 

assaults.17 As we noted in Sorenson, "Contemporaneity and 

 

16 Officer Cardenas testified that he has been working for 

the sensitive crimes division of the Milwaukee Police Department 

for "approximately five years" and has conducted "close to 200" 

forensic interviews with children ages 4-12.

17 O.G. told her mother that the last assault happened "the 

day before yesterday." This was in August. N.G.'s medical 

record indicates that the last assault occurred on August 9, 

2016. However, it does not appear from the record that N.G. 

explicitly indicated a date range wherein the assaults occurred, 

and the State acknowledged that "it seems unclear when exactly 
No. 2018AP2419-CR 

29

spontaneity of statements are not as crucial in admitting 

hearsay statement[s] of young sexual assault victims under the 

residual exception." Sorenson, 143 Wis. 2d at 249; see also

Huntington, 216 Wis. 2d 671, ¶30 (noting that a two-week period 

between the assault and the statement did not detract from its 

trustworthiness). Accordingly, we conclude that the potential 

several week delay in reporting does not undercut the 

truthfulness of N.G.'s statement. 

¶61 Fourth, the content of N.G.'s statement further 

supports its trustworthiness. As we stated in Sorenson, "A 

young child is unlikely to fabricate a graphic account of sexual 

activity because it is beyond the realm of his or her 

experience." Sorenson, 143 Wis. 2d at 249. N.G. told Officer 

Cardenas that Mercado "licked [her] on [her] butt." She also 

demonstrated knowledge appropriate for her age, saying for 

example that her butt is used "to pee" and using the term "butt" 

for both her buttocks and genitals. Based on the manner in 

which she described the assaults, the content of her statement 

appears to be free from adult manipulation. See Snider, 266 

Wis. 2d 830, ¶18.

¶62 Fifth, there is circumstantial evidence that 

corroborates N.G.'s statement to Officer Cardenas. We note at 

the outset that there was not physical evidence of the assaults, 

which is to be expected given the nature of the assaults. 

 

the assaults began in relation to when the disclosures 

happened."
No. 2018AP2419-CR 

30

Huntington, 216 Wis. 2d 671, ¶32. Rather, we conclude there is 

corroborating evidence in the consistency of N.G.'s statements. 

Specifically, N.G. offered nearly identical statements to her 

mother and to Nurse Kanack. In both circumstances she was 

unprompted and offered these statements voluntarily. As noted 

in the facts of this case, she told her mother about the assault 

after hearing a song lyric. Nurse Kanack testified that N.G. 

"blurted . . . out spontaneously" that "Viejo keeps licking me 

on my butt; I hate him." Additionally, O.G. and L.G. 

acknowledged that Mercado assaulted all three of them. We 

conclude that these surrounding statements are sufficient to 

corroborate N.G.'s statement to Officer Cardenas.

¶63 In assessing all five Sorenson factors, we conclude 

that there are sufficient circumstantial guarantees of 

trustworthiness to permit N.G.'s statement to be admitted under 

the residual hearsay exception.18

¶64 The court of appeals concluded otherwise. It 

determined that factors one and four were fatally missing. 

Mercado, 391 Wis. 2d 304, ¶49. The court of appeals held the 

first factor was not met because N.G. did not demonstrate that 

she understood the difference between the truth and a lie. Id. 

 

18 Because we conclude that N.G.'s video-recording is 

admissible under the residual hearsay exception, we need not 

settle whether the circuit court correctly found that N.G. 

understood the importance of telling the truth. See Maryland

Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 

786 N.W.2d 15 ("Issues that are not dispositive need not be 

addressed."). For the same reason, we do not address whether 

N.G.'s video was admissible as a prior inconsistent statement. 
No. 2018AP2419-CR 

31

The court of appeals also held that by not watching the videorecordings in their entireties, the circuit court could not have 

made a determination that the statements were free from 

indications of falsity contrary to the requirements of the 

fourth factor. Id.

¶65 The court of appeals rationale is flawed for at least 

two reasons. First, the court of appeals combined the 

requirements of Wis. Stat. §§ 908.08(2), (3) and (7). 

Specifically, it held that N.G. did not demonstrate the 

requisite level of truthfulness "as required by the first 

factor." Id. This conflates the first Sorenson factor with the 

child's understanding of the importance of telling the truth, 

found in § 908.08(3)(c). As outlined above, veracity of 

reporting is to be considered under the first factor; however, 

circuit courts are to examine other attributes of the child as 

well. Next, the court of appeals held that "by not reviewing 

the videos in their entirety prior to admitting them, the trial 

court did not fully comply with the fourth . . . factor relating 

to the content of the statement and whether there are 

indications that the information is false." Id. Once again, 

this conclusion injects a requirement that is unnecessary in a 

§ 908.08(7) analysis. 

¶66 As the court of appeals previously explained in 

Snider:

[T]he plain language of Wis. Stat. § 908.08(7) permits 

the admission of a child's videotaped statement under 

any applicable hearsay exception regardless of whether 

the requirements of subsections (2) and (3) have been 
No. 2018AP2419-CR 

32

met. Section 908.08(1) permits the admission of a 

"videotaped oral statement of a child who is available 

to testify, as provided in this section." The 

remaining subsections of the statute provide two ways 

for the statement to be admitted "as provided in this 

section." The first is by meeting the various 

requirements set forth in subsections (2) and (3). If 

these requirements are met, the court "shall admit the 

videotape statement," § 908.08(3), and it need not 

consider any other grounds for admitting a statement. 

Alternatively, a court "may also admit into evidence a 

videotape oral statement of a child that is hearsay 

and is admissible under this chapter as an exception 

[to] the hearsay rule." Section 908.08(7). This 

language can only be read to mean that, if a child's 

videotape statement is admissible under one of the 

hearsay exceptions set forth in Wis. Stat. § 908.03, 

the requirements listed in the preceding subsections 

of § 908.08 are inapplicable. 

Snider, 266 Wis. 2d 830, ¶12 (emphasis in original). We agree 

with Snider's conclusion. Section 908.08 provides two methods 

by which a party may introduce a child's video-recording. By 

requiring a video-recording to satisfy subsections (2) and (3) 

despite the plain language of subsection (7), the court of 

appeals read one of the two modes of admission out of the 

statute. "Statutory language is read where possible to give 

reasonable effect to every word, in order to avoid surplusage." 

Kalal, 271 Wis. 2d 633, ¶46. The court of appeals' 

interpretation violates this principle.

¶67 The second flaw in the court of appeals' discussion is 

that, assuming arguendo that factors one and four were not met 

here, the court of appeals did not weigh the missing factors 

against the ones it appeared to conclude were present. Its 

opinion merely makes the conclusory statement that factors one 

and four were not met and the circuit court therefore erred in 
No. 2018AP2419-CR 

33

admitting the video-recording as residual hearsay. Mercado, 391 

Wis. 2d 304, ¶49. As we explained in Sorenson, no single factor 

is dispositive. The court of appeals should have considered all 

five factors and made its decision based on the comparative 

weights it gave to all of the Sorenson factors. Even if some 

portions of some of the factors were missing, there was other 

evidence that overwhelmingly supports admitting the videorecording.19 

¶68 For all of the above reasons, we conclude that N.G.'s 

video-recording was admissible as residual hearsay and the court 

of appeals' statutory interpretation and analysis were 

incorrect. 

IV. CONCLUSION

¶69 We conclude that Mercado forfeited several of his 

objections to the admissibility of the forensic interviews. 

Specifically, Mercado forfeited his contentions that: (1) the 

circuit court erred by not watching the victims' forensic 

interviews in their entirety prior to admitting them, and 

(2) the circuit court erred by permitting N.G. to testify prior 

to the jury watching her forensic interview. Additionally, 

although Mercado objected to the admissibility of N.G.'s video-

 

19 As with Sorenson, N.G.'s statement was admitted under a 

different hearsay exception. However, we "will not reverse a 

lower court decision where that court has exercised its 

discretion based on a mistaken view of the law if the facts and 

their application to the proper legal analysis support the lower 

court's conclusion." State v. Sorenson, 143 Wis. 2d 226, 250, 

421 N.W.2d 77 (1988).
No. 2018AP2419-CR 

34

recording under Wis. Stat. §§ 908.08(2) and (3), we conclude 

that her video-recording is admissible under § 908.08(7) based 

on the residual hearsay exception found in Wis. Stat. 

§ 908.03(24). Therefore, we conclude that the circuit court did 

not erroneously exercise its discretion when it admitted the 

three video-recorded forensic interviews during Mercado's trial. 

Accordingly, the court of appeals' decision is hereby reversed 

in full and has no precedential value.

By the Court.—The decision of the court of appeals is 

reversed.
No. 2018AP2419-CR 

1