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Audiovisual recording of child victim’s forensic interview was properly admitted

State v. Beverly Reshall Holt, 2013AP2738-CR, 3/8/16, District 1 (not recommended for publication); case activity (including briefs)

The trial court did not err in admitting the audiovisual recording of the forensic interview of Caleb, one of the child victims, at Holt’s trial for child sexual assault.

Holt was charged with two counts of first-degree child sexual assault for having intercourse with a child under 12, two counts of first-degree child sexual assault for having sexual contact with a child under 13, and one count of trafficking of a child. Police conducted forensic interviews of both child victims, Caleb, then age 4, and Marcus, then age 6. Both interviews were videotaped and played at trial under § 908.08, and each boy testified the video of his interview was played. (¶¶2-19).

Holt argues the video of Caleb’s interview shouldn’t have been admitted because it didn’t meet two of the criteria under § 908.08(3)—namely, Caleb did not demonstrate that he had the ability to understand the importance of telling the truth, § 908.08(3)(c); and the videotape of Caleb’s forensic interview didn’t contain the necessary indicia to support its trustworthiness, § 908.08(3)(d). The court rejects the arguments.

First, under State v. Jimmie R.R., 2000 WI App 5, 232 Wis. 2d 138, 606 N.W.2d 196, § 908.08(3)(c) is satisfied if it is shown that the child understands that false statements are punishable and that telling the truth is important; these concepts are interrelated and can’t be viewed in isolation. (¶¶29-32). Applying this standard, the court affirms the trial court’s conclusion that Caleb’s interview met the § 908.08(3)(c) criterion:

¶33     We agree with the trial court that Caleb made some “obvious errors” during the truth-telling protocol with Officer Klauser. We also agree with the trial court’s recognition that Caleb understood the importance of telling the truth based on his understanding that a child gets in trouble when caught lying. Importantly, Caleb’s recognition during the forensic interview that lying is bad and results in punishment is both apparent and consistent. Moreover, despite alternating between nodding his head “yes” and shaking his head “no” when asked if he promised to tell the truth, he was adamant that he had told Officer Klauser “the right thing.” As in Jimmie R.R., we believe that a reasonable child who understands the negative consequences associated with telling a lie would associate that concept with the importance of telling the truth. See id., ¶42 n.7. Accordingly, based on the totality of the circumstances surrounding Caleb’s forensic interview, we conclude that the “truthfulness” prong was satisfied.

Second, the factors under State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), show Caleb’s video satisfied § 908.08(3)(d)‘s trustworthiness prong. In particular, Caleb was 4 years old at the time of the video but was able to describe and demonstrate sexual activity otherwise beyond his realm of experience, and the interviewer was trained in interviewing children and no motive to encourage Caleb to fabricate, and Holt’s relationship to Caleb’s mother may have discouraged Caleb from disclosing to family members. While there was no corroborating physical evidence, that was mostly due to delay in reporting. While there were discrepancies between Caleb’s videotaped statement and his trial testimony—which occurred almost two years after the forensic interview—resolution of those discrepancies was for the jury and has little bearing as to the trustworthiness of the videotaped forensic interview. (¶¶34-40).

Holt also argued Caleb was not “available to testify” at trial under § 908.08(1) because, by virtue of § 908.04(1)(c), a witness is unavailable if he or she “[t]estifies to a lack of memory of the subject matter of the declarant’s statement,” and Caleb was unable to answer questions about his statements at the forensic interview, was unable to recall ever having been at Holt’s house, and some of his trial testimony conflicted with his statements forensic interview. (¶41). This claim wasn’t preserved because it was never raised with the trial court. (¶42).

Finally, Holt challenges the sufficiency of the evidence on each of the five counts on which she was convicted. In a lengthy, fact-intensive analysis, the court of appeals rejects her challenges. (¶¶46-69).

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