Court Error – Admittance of Evidence

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angel Mercado

Case No.: 2018AP2419-CR

Officials: Brash, P.J., Kessler and Fitzpatrick, JJ.

Focus: Court Error – Admittance of Evidence

Angel Mercado appeals his judgment of conviction for two counts of first-degree sexual assault of a child for having sexual contact with a child under the age of thirteen, and one count of first-degree sexual assault of a child for having sexual intercourse with a child under the age of twelve. He also appeals the trial court’s denial of his postconviction motion for a new trial on the grounds that the trial court erred in admitting the videos of forensic interviews of the three children. Mercado argues that the court did not follow all of the statutory procedures for the admission of those videos, as set forth in WIS. STAT. § 908.08 (2017-18).  He further asserts that admission of the videos under alternative grounds—either pursuant to the residual hearsay exception, or, in the case of the youngest child, as a prior inconsistent statement—would have been in error as well.

The trial court rejected Mercado’s claims, stating that it “perceive[d] no error” in statutory procedure in its admission of the videos. The court also agreed with the State that in any event, all three videos were admissible under the residual hearsay exception, and that the video of the youngest child was admissible as a prior inconsistent statement.

We disagree. The record indicates that the statutory requirements for admission of all three of the videos were not fully met and further, that the requirements for admission under the residual hearsay exception or as a prior inconsistent statement likewise were not satisfied. We therefore reverse Mercado’s convictions on all three charges and remand this matter for a new trial.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.