¶12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt, 128 Wis. 2d 110, 124-26, 382 N.W.2d 679 (Ct. App. 1985). If, however, actions by the State prevented fact finding on an issue that could have been resolved, then waiver may be applied. See State v. Nichelson, 220 Wis. 2d 214, 230, 582 N.W.2d 460 (Ct. App. 1998). Here, the State did nothing to prevent necessary fact finding; on the contrary, the State initiated the process from which the trial court made the pretrial findings of witness intimidation that supported the order terminating Rodriguez’s access to telephone, mail and visitors in order to prevent further intimidation.