State v. Jerry D. Fishbaugher

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 19, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1543-CR Cir. Ct. No. 2015CF876

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERRY D. FISHBAUGHER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, 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. 2022AP1543-CR

¶1 PER CURIAM. Jerry Fishbaugher appeals a judgment of
conviction and an order denying his postconviction motion. His arguments on
appeal relate to the admission of a child’s recorded interview into evidence at trial
under WIS. STAT. § 908.08 (2021-22).1 He argues that the circuit court erred in
finding sufficient cause for the State’s untimely filing of the supporting offer of
proof as required by § 908.08(2). He also argues that the court erred in concluding
that the interview met the criteria for admissibility set forth in § 908.08(3). We
reject both arguments, and we also reject other arguments that Fishbaugher makes
relating to the recorded interview. Accordingly, we affirm.

Background

¶2 The State charged Fishbaugher with one count of first-degree sexual
assault of a child, A.B., and one count of exposing A.B. to harmful materials.2 On
the Thursday before the trial, the State filed an offer of proof for A.B.’s recorded
interview. Under WIS. STAT. § 908.08(2)(a), the State’s offer was to be filed
“[n]ot less than 10 days before the trial or hearing, or such later time as the court
or hearing examiner permits upon cause shown.”

¶3 Fishbaugher objected to the State’s offer of proof as untimely. He
also argued that the interview failed to meet the criteria for admissibility under
WIS. STAT. § 908.08(3). The circuit court allowed the interview to be played at
trial without holding a hearing on its admissibility. Ultimately, the jury found
Fishbaugher guilty of both counts.

1
All references to the Wisconsin Statutes are to the 2021-22 version.
2
We refer to the child using initials that do not correspond to his own to protect his
anonymity. See WIS. STAT. RULE 809.86(4).

2
No. 2022AP1543-CR

¶4 After his conviction, Fishbaugher filed a motion requesting a new
trial. The circuit court denied the motion, and Fishbaugher appealed. We reversed
and remanded the matter for a post-trial hearing. See State v. Fishbaugher,
No. 2021AP1558-CR, unpublished slip op. (WI App Mar. 24, 2022). We directed
the court to consider “(1) Fishbaugher’s objection that there was insufficient cause
for the late offer of proof; and (2) whether the recorded [interview] was admissible
under WIS. STAT. § 908.08(3).” Id. at ¶8.

¶5 On remand, the circuit court determined (1) that there was sufficient
cause for the State’s untimely offer of proof, and (2) that the interview met the
criteria in WIS. STAT. § 908.08(3). This appeal followed.

Discussion

A. Cause for the State’s Untimely Offer of Proof

¶6 Fishbaugher first argues that the circuit court erred in finding that
there was “cause” for the State’s untimely offer of proof under WIS. STAT.
§ 908.08(2). Section 908.08(2)(a) states:

Not less than 10 days before the trial or hearing, or
such later time as the court or hearing examiner permits
upon cause shown, the party offering the statement shall
file with the court or hearing officer an offer of proof
showing the caption of the case, the name and present age
of the child who has given the statement, the date, time and
place of the statement and the name and business address of
the camera operator. That party shall give notice of the
offer of proof to all other parties, including notice of
reasonable opportunity for them to view the statement
before the hearing under par. (b).

¶7 Fishbaugher argues that “cause” under the statute should be
interpreted consistent with definitions of “cause” and “good cause” in other
contexts. He argues that the State failed to show sufficient cause under those

3
No. 2022AP1543-CR

definitions. The State advances a lower standard for “cause” under the statute.
Alternatively, the State argues that the record supports the circuit court’s finding
of sufficient cause even under the “good cause” standard.

¶8 We will assume, without deciding, that the “good cause” standard
applies. Applying this standard, we conclude that the record supports the circuit
court’s determination that there was sufficient cause.3

¶9 In F.E.W. v. State, 143 Wis. 2d 856, 422 N.W.2d 893 (Ct. App.
1988), we set forth factors the court may consider in deciding whether there is
good cause for a party’s failure to comply with a deadline. The factors include:
“(1) that the party seeking the enlargement of time has acted in good faith; (2) that
the opposing party has not been prejudiced; and (3) whether the dilatory party took
prompt action to remedy the situation.” Id. at 861.

¶10 As to the first and third factors, the circuit court here found that the
State’s failure to timely file its offer of proof was an “oversight” and that the
prosecutor promptly filed the offer as soon as she realized the mistake. The record
supports these findings. There is no evidence that the State sought to conceal the
interview, the interview’s contents, or the State’s intention to rely on the interview
at trial. The prosecutor testified that she was assigned to the case about a week
before trial and that she filed the offer as soon as she realized that it was not
previously filed. Although she did not specifically explain why her predecessor

3
We are uncertain whether the parties agree that we review the circuit court’s
determination of cause as an exercise of discretion or as a factual finding. For reasons discussed
in the text, we would uphold the determination under the standard of review for either type of
determination.

4
No. 2022AP1543-CR

had not filed the offer sooner, we conclude that this lack of explanation is not
dispositive on the facts here.

¶11 As to the second factor, the circuit court found that Fishbaugher was
not prejudiced by the State’s untimely offer. The court found that “[d]espite the
late formal notice, both parties were aware of [A.B.’s] video [interview] for years
prior to the trial,” and that “[t]he video [interview] was central to both parties’
preparation of their trial strategy.” The court also found that Fishbaugher had
actual notice of the State’s intent to seek admission of the interview at trial. It
found that “despite the oversight, both the State and the Defense, over the many
years this case was pending had notice from day one of the existence and content
of the child forensic interview which was the centerpiece of the State’s case.”

¶12 These findings are amply supported by the record. The complaint
against Fishbaugher referenced A.B.’s recorded interview and its contents, and it
took several years for the case to come to trial. In the interim, Fishbaugher filed a
series of pleadings and other documents in which he referenced the interview and
its contents. Additionally, the record indicates that he considered retaining an
expert to address the interview and requested continuances for that purpose.
Finally, it is undisputed that the State provided him with a copy of the recorded
interview as part of the discovery process more than three years before trial.

B. Admissibility Under WIS. STAT. § 908.08(3)

¶13 Fishbaugher next argues that the circuit court erred in concluding
that A.B.’s recorded interview met the five criteria for admissibility under WIS.

5
No. 2022AP1543-CR

STAT. § 908.08(3).4 We disagree, and for the reasons that follow we uphold the
court’s conclusion.5

¶14 As applied here, the first criterion is that the “trial … in which the
recording is offered will commence … [b]efore the child’s 12th birthday.” WIS.
STAT. § 908.08(3)(b). There is no dispute that this criterion was met.

4
WISCONSIN STAT. § 908.08(3) provides:

The court or hearing examiner shall admit the recording
upon finding all of the following:

(a) That the trial or hearing in which the recording is
offered will commence:

1. Before the child’s 12th birthday; or

2. Before the child’s 16th birthday and the interests of
justice warrant its admission under sub. (4).

(b) That the recording is accurate and free from
excision, alteration and visual or audio distortion.

(c) That the child’s statement was made upon oath or
affirmation or, if the child’s developmental level is inappropriate
for the administration of an oath or affirmation in the usual form,
upon the child’s understanding that false statements are
punishable and of the importance of telling the truth.

(d) That the time, content and circumstances of the
statement provide indicia of its trustworthiness.

(e) That admission of the statement will not unfairly
surprise any party or deprive any party of a fair opportunity to
meet allegations made in the statement.
5
Fishbaugher argues that we must apply de novo review to the circuit court’s conclusion
that the recorded interview met the criteria under WIS. STAT. § 908.08(3). The State agrees that
there is case law to support this position, but it appears to question the correctness of the case law.
We will assume, without deciding, that our review of this issue is de novo.

6
No. 2022AP1543-CR

¶15 The second criterion is “[t]hat the recording is accurate and free
from excision, alteration and visual or audio distortion.” WIS. STAT.
§ 980.08(3)(a). There is no dispute that this criterion was met.

¶16 The third criterion is “[t]hat the child’s statement was made upon
oath or affirmation or, if the child’s developmental level is inappropriate for the
administration of an oath or affirmation in the usual form, upon the child’s
understanding that false statements are punishable and of the importance of telling
the truth.” WIS. STAT. § 908.08(3)(c). Fishbaugher disputes that this criterion was
met.

¶17 A.B.’s recorded interview does not show that the interview was
“made upon oath or affirmation.” See id. A.B. was seven years old at the time of
his interview. Thus, the question is whether the interview was “made … upon
[A.B.]’s understanding that false statements are punishable and of the importance
of telling the truth.” See id.

¶18 Fishbaugher argues that A.B.’s interview did not meet this criterion
because it did not demonstrate that A.B. understood the difference between the
truth and a lie and the importance of telling the truth. We disagree and conclude
that A.B.’s responses to questions during the interview demonstrate his
understanding of these concepts in an appropriate manner for a child of his age.

¶19 In response to the interviewer’s questions at the outset of the
interview about what it means to tell the truth and to lie, A.B. said that to tell the
truth means to “never lie” and that lying “means you will get in trouble.” A.B.
also nodded his head up and down when the interviewer asked if telling the truth
means “to tell what actually happened or what really happened.” He also nodded

7
No. 2022AP1543-CR

his head up and down when the interviewer asked if he would agree that
“everything we talk about today will be true.”

¶20 Later during the interview, A.B. provided additional responses
indicating that he understood the difference between the truth and a lie and the
importance of telling the truth. He described a time when his mom “told a lie” to
someone else about whether his dad was home, and he talked about a child who he
did not want to sit by “because she lies to me.”

¶21 The fourth statutory criterion is “[t]hat the time, content and
circumstances of the statement provide indicia of its trustworthiness.” WIS. STAT.
§ 908.08(3)(d). Although Fishbaugher does not specifically reference this
criterion in his arguments, he appears to dispute that the criterion was met. He
makes two arguments that appear to relate to this criterion. We reject both
arguments.

¶22 First, Fishbaugher argues that A.B.’s recorded interview was
unreliable because parts of the interview suggested that A.B. was previously
interviewed by the lead detective, “Fritz,” prior to the recorded interview. He cites
to parts of the interview in which the interviewer told A.B. “[Y]ou got to meet
Fritz. Remember the guy that popped in there?” and “Do you remember Fritz who
you met this morning?” However, Fishbaugher does not otherwise develop this
argument. We reject the argument as speculative and insufficiently developed.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)
(explaining what constitutes a developed argument and that the court of appeals
need not consider undeveloped arguments).

¶23 Second, Fishbaugher argues that A.B.’s recorded interview was
unreliable because A.B. repeatedly said “I just want it to stop,” using the phrase a

8
No. 2022AP1543-CR

total of twenty-six times during the interview. According to Fishbaugher, that
phrase “does not appear to be [one] that is commonly used by a seven[-]year-old,”
making it “plainly appear[] that someone had coached [A.B.]” This argument, like
Fishbaugher’s previous argument, is speculative and insufficiently developed. We
therefore reject it.6

¶24 The fifth statutory criterion is “[t]hat admission of the statement will
not unfairly surprise any party or deprive any party of a fair opportunity to meet
allegations made in the statement.” WIS. STAT. § 908.08(3)(e). Although
Fishbaugher does not specifically reference this criterion in his arguments, we are
uncertain if he concedes that it was met. Regardless, we conclude that it was met
for the reasons discussed in paragraphs 11 to 12 above relating to the lack of
prejudice resulting from the State’s untimely offer of proof.

¶25 In sum, we conclude that A.B.’s interview met the criteria for
admissibility under WIS. STAT. § 908.08(3).7

C. Other Arguments

¶26 Fishbaugher makes two additional arguments relating to A.B.’s
recorded interview. Neither of these arguments appears to be based on the criteria

6
Fishbaugher asserts that the phrase A.B. repeatedly used was “I just want it to stop,”
but a review of A.B.’s recorded interview shows that A.B. repeatedly used two slightly different
phrases: “I want it to stop” and “I really want it to stop.” Regardless of the exact phrasing, we
reject Fishbaugher’s argument that A.B.’s repeated use of the phrase shows that the interview was
unreliable.
7
Because we conclude that the interview met the criteria for admissibility under WIS.
STAT. § 908.08(3), we do not address the parties’ dispute over whether the interview was
admissible under the residual hearsay exception.

9
No. 2022AP1543-CR

for admissibility in WIS. STAT. § 908.08(3). Regardless, for the reasons we now
explain, we conclude that the arguments are not persuasive.

¶27 First, Fishbaugher argues that he was prejudiced by the admission of
A.B.’s recorded interview because it contains irrelevant allegations of physical
abuse. He argues that these allegations appealed to the jury’s sympathy and
passions. However, the allegations involved abuse by individuals other than
Fishbaugher, and we are not persuaded that they plausibly could have affected the
outcome at trial.

¶28 Second, Fishbaugher argues that A.B.’s recorded interview, which
alleged multiple sexual assaults, created a duplicity violation. “Duplicity is the
joining in a single count of two or more separate offenses.” State v. Lomagro, 113
Wis. 2d 582, 586, 335 N.W.2d 583 (1983). The prohibition against duplicity has
multiple purposes: “(1) to assure that the defendant is sufficiently notified of the
charge; (2) to protect the defendant against double jeopardy; (3) to avoid prejudice
and confusion arising from evidentiary rulings during trial; (4) to assure that the
defendant is appropriately sentenced for the crime charged; and (5) to guarantee
jury unanimity.” Id. at 586-57.

¶29 Here, Fishbaugher’s duplicity argument is based on the fifth
purpose, jury unanimity. He points out that he was charged with a single count of
sexual assault, even though A.B. alleged multiple instances of sexual assault in
different locations at his grandmother’s house over a period of months. This
included allegations of Fishbaugher anally penetrating A.B., penis-to-penis
contact, hand-to-penis contact, and mouth-to-penis contact. Fishbaugher argues
that “there is no guarantee the jury was unanimous that [he] committed the same
sexual assault.”

10
No. 2022AP1543-CR

¶30 The State counters that there is no unanimity issue based on the
following circumstances. First, the single count of sexual assault was charged as
an act of sexual intercourse. Second, the jury was instructed that “sexual
intercourse” means “any intrusion, however slight, by any part of a person’s body
or any object, into the genital or anal opening of another.” Finally, the
prosecutor’s arguments to the jury focused only on whether Fishbaugher anally
penetrated A.B.

¶31 Based on these circumstances, the State contends that the jury could
have found Fishbaugher guilty only if the jurors unanimously agreed that he
assaulted A.B. by anal penetration, and that there was no risk that the jurors found
him guilty based on other types of alleged sexual activity. We agree, and conclude
that Fishbaugher has not identified any flaw in the State’s analysis. Accordingly,
we also conclude that he has not shown a duplicity violation.8

Conclusion

¶32 For all of the reasons stated above, we affirm the judgment of
conviction and the order denying Fishbaugher’s postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8
Fishbaugher appears to argue in the alternative that he was prejudiced by A.B.’s
recorded interview because the interview included other-acts evidence. We conclude that
Fishbaugher’s argument, which consists of one textual sentence and a single footnote, is
undeveloped, and we reject it on this basis. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992).

11