State v. Antonio G. Ramirez, Jr.

                                                                            2023 WI APP 63
                 COURT OF APPEALS OF WISCONSIN
                      PUBLISHED OPINION

Case No.:              2021AP1590-CR

                                                                          †Petition for Review filed

Complete Title of Case:


              STATE OF WISCONSIN,

                     PLAINTIFF-APPELLANT,

                V.

              ANTONIO G. RAMIREZ, JR.,

                     DEFENDANT-RESPONDENT.†



Opinion Filed:          November 15, 2023
Submitted on Briefs:    October 27, 2022
Oral Argument:

JUDGES:                 Gundrum, P.J., Neubauer and Grogan, JJ.
     Concurred:
     Dissented:

Appellant
ATTORNEYS:              On behalf of the plaintiff-appellant, the cause was submitted on the
                        briefs of Joshua L. Kaul, attorney general, and Jacob J. Witter,
                        assistant attorney general.

Respondent
ATTORNEYS:              On behalf of the respondent, the cause was submitted on the brief of
                        Andrew R. Hinkel, state public defender, Madison.
                                                                            2023 WI App 63

       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.
         November 15, 2023
                                                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.          2021AP1590-CR                                            Cir. Ct. No. 1999CF950

STATE OF WISCONSIN                                          IN COURT OF APPEALS



STATE OF WISCONSIN,

       PLAINTIFF-APPELLANT,

  V.

ANTONIO G. RAMIREZ, JR.,

       DEFENDANT-RESPONDENT.




                 APPEAL from an order of the circuit court for Kenosha County:
DAVID P. WILK, Judge. Reversed and cause remanded with directions.

                 Before Gundrum, P.J., Neubauer and Grogan, JJ.

        ¶1       GUNDRUM, P.J. In Ramirez v. Tegels, 963 F.3d 604, 618-19 (7th
Cir. 2020), the United States Court of Appeals for the Seventh Circuit affirmed the
district court’s grant of Antonio G. Ramirez, Jr.’s petition for a writ of habeas corpus
and ordered the State to “either release Mr. Ramirez from custody or grant him a
                                                                                No. 2021AP1590-CR




new appeal in which he may advance his confrontation [clause] claim” related to
his convictions from a 2001 jury trial for sexually assaulting his step-daughter,
Megan,1 in November 1998 and September 1999. His appeal rights reinstated,
Ramirez filed a postconviction motion in the circuit court contending he was entitled
to a new trial because (1) his Confrontation Clause rights were violated by the
admission at trial, through other witnesses, of out-of-court statements by Megan and
her younger brother, neither of whom testified at trial, and (2) he was denied his
right to a fair trial because he was barred from impeaching a State witness,
Dr. Michael Schellpfeffer, in connection with immunity the State granted him for
his testimony. The circuit court agreed with both of Ramirez’s contentions, granted
his motion, and ordered a new trial. The State appeals, and we now reverse and
direct the circuit court to reinstate Ramirez’s October 29, 2013 amended judgment
of conviction.

                                         Background

        ¶2       On September 7, 1999, Ramirez was charged with two counts of
sexually assaulting seven-year-old Megan on November 8, 1998, as well as with
child enticement and sexually assaulting her on September 5, 1999.2 The following
evidence relevant to this appeal was presented at his 2001 trial.

        ¶3       Officer George Larsen testified that on September 5, 1999, he was
dispatched to Megan’s grandmother’s residence, where he spoke with Megan’s
mother. In a “very emotional, sad, crying, concerned” state, she indicated she


        1
            Megan is a pseudonym.
        2
           Ramirez was also charged with child abuse (related to alleged abuse of Megan’s younger
brother), battery (of Megan’s mother), false imprisonment, and resisting an officer, all related to
September 5, 1999 allegations, but he was found not guilty of those counts.



                                                2
                                                                          No. 2021AP1590-CR




believed Megan had been sexually assaulted by Ramirez because when she returned
to her residence that evening, “the door was locked with a chain which was not
normal” and she had to force it open; “[u]pon entering … she saw [Ramirez] coming
out of the child’s bedroom pulling up his shorts” and Megan “sitting on the toilet,
and she had a look on her face”; and her son told her that Ramirez “had [Megan] on
the bed face down, and there were boogers on the bed.” The mother also told Larsen
that after returning to her residence and observing what she had observed, she
angrily confronted Ramirez, and a fight ensued. Ramirez initially prevented her
from leaving the residence, but eventually Megan’s grandmother picked her and the
children up and drove them to the grandmother’s residence.

       ¶4      Larsen transported Megan and her mother to the hospital and was in
the emergency room (ER) for some time while Nurse Donna Halpin spoke with
Megan. Larsen gave Megan a Teddy bear, which she held while she talked with
him. Megan told him “that her father[3] had put her face down … on the bed, and
… put his private by her pooh-pooh,” and she showed Larsen on the bear where
Ramirez had touched her “with his private.” She also told Larsen that when she
went to the bathroom and wiped herself, “there was brown stuff on there.” Larsen
told his supervisor, as well as evidence technician John Gray, to look for evidence
of such wiping.

       ¶5      Asked if he “hear[d] any conversation between either [himself] and
[the nurse] and [Megan] about any incident that occurred in November of 1998,”
Larsen responded, “Yes. [Megan] also stated that when this happened before that
it was her dad.” As Megan’s mother was then explaining to Larsen that months


       3
          Megan’s mother testified that Megan has always referred to Ramirez as “her father,
daddy,” even though he is actually her step-father.



                                             3
                                                                          No. 2021AP1590-CR




earlier she had taken Megan to St. Catherine’s Hospital because of vaginal bleeding
that the mother believed was from a bathtub fall, Megan interjected, “No, my daddy
did it.”

        ¶6    On cross-examination, Larsen acknowledged that at no point was he
alone with Megan or her younger brother, and he could not recall if it was Megan
or her mother who first mentioned the November 1998 assault. He again testified
that the mother had stated that the younger brother “had told her that [Megan] was
face down on the bed with dad and there were boogers on the bed[].” Larsen
acknowledged he believed “boogers” could be “some evidence of semen or sperm”
and that he had informed evidence technicians as to where to look for evidence in
the home. He agreed that he had told the mother while at the grandmother’s
residence that they would be going to the hospital and “ha[d] to do a rape kit.”

        ¶7    Halpin testified that she had twenty-six years of combined experience
as a pediatric nurse taking care of children “for any type of medical or emotional
problems” and as an ER nurse “do[ing] lots of things,” including “assess[ing]
patients as they come in to find out the acuity of care that’s needed.” She agreed it
was “part of [her] responsibility to obtain the history from a patient,” adding that a
nurse

              need[s] a history to find out current events that are going on
              with the patient[,] their history in the past, past medical
              problems. We try to find out exactly the symptoms they’ve
              been having and what they’ve been treated for before, and
              what’s been surrounding the current reason that they’re in
              the emergency department.

After obtaining the history, a nurse “document[s] it on the chart and … share[s] that
with the physician and then we take care of the patient together.”




                                            4
                                                                       No. 2021AP1590-CR




       ¶8     Halpin further testified that Megan arrived in the ER on September 5,
1999, accompanied by her mother and Larsen. The mother told Halpin she had been
gone from the house for a short time, and when she came back, the door was locked,
“which was unusual.” The mother

              said she broke in to get through the door. And when she got
              in the house she saw her husband coming out of [Megan’s]
              bedroom pulling his pants up…. [N]ext she saw [Megan] on
              the toilet in the bathroom and she went in there. She said
              that [Megan] had a very bad look on her face, and she knew
              something bad had happened.

       ¶9     Because Megan was “very frightened,” Halpin began with a general,
noninvasive examination and asked basic questions to build rapport. Halpin was
eventually able to ask Megan more substantive questions, and with Halpin and
Megan’s mother both talking with Megan, she slowly revealed details. Halpin asked
Megan “where this happened,” and she responded, “in her bedroom.” Megan
further told Halpin “[t]hat her dad had taken off her pants and he took off his pants,
and she was laying on her belly on the bed. And he put his pee-pee by her butt.
Well, like on top of her.” Megan’s mother was crying, upset, hugging Megan, and
“[t]elling her to tell us the truth.” Megan further told Halpin she “felt something by
her butt, so she went into the bathroom and she wiped herself with some tissue and
threw it in the wastepaper basket.”

       ¶10    Halpin asked Megan “if this was the first time something like this had
happened,” and Megan responded, “No.” Megan’s mother then asked her “if when
she went to St. Catherine’s for her vaginal bleeding did she really hurt herself on
the bathtub. And she said: No, she hadn’t,” adding “that dad … was trying to put
his pee-pee inside of her and that’s how she got cut. That it wasn’t the bathtub.”
Halpin asked Megan why she had not told anyone, and Megan informed her that




                                          5
                                                                      No. 2021AP1590-CR




Ramirez “had told her that if she told anybody about this that he would hurt her little
brother, her mom or her grandma.”

       ¶11    Halpin also testified that Dr. Suzanne Siegel entered the room and
examined Megan with Halpin’s assistance. Halpin observed “a creamy discharge”
in Megan’s vaginal area, which she indicated “could be a normal finding in an adult
[but not] on a young girl.” Siegel utilized a “Woods lamp,” which shows purple if
“semen” is present, and it revealed “little speckles of purple all over [Megan’s]
thighs.” Samples of the substance were obtained, with one being sent, Halpin
believed, to “the lab” and one to “the crime lab.” Halpin recovered clothing from
Megan “[a]ccording to a rape protocol that we follow,” and after Megan had been
discharged from the ER, Halpin provided a police officer with a written statement
as to what had occurred.

       ¶12    On cross-examination, Halpin acknowledged that according to a
September 5, 1999 report by Siegel, there was no indication vaginal penetration had
occurred. On redirect examination, she testified that the “diagnostic impression”
from the report stated “[p]hysical findings are consistent with sexual assault” and
confirmed that the report indicated “[r]edness” was observed on Megan’s vaginal
area. On further re-cross-examination, Halpin acknowledged that such redness
“could also come from a child rubbing herself,” but based upon the particular
redness Megan had, Halpin denied that it “could also come from … [l]ike a mother
wiping a child.” She indicated she did not know whether it could come “from
someone putting something in the child.”

       ¶13    Siegel testified that she was the ER physician who examined Megan
on September 5, 1999. Megan’s mother informed Siegel that Ramirez appeared
intoxicated when she left their residence, and when she returned, “the door was


                                          6
                                                                              No. 2021AP1590-CR




locked and she had to break into the door. And she found the child in the bathroom
wiping herself and … her husband leaving the child’s room pulling his pants up.”

        ¶14     Siegel asked Megan “very specific questions,” and Megan told her
that Ramirez “to use [Megan’s] words … had put his pee-pee by her. And she
pointed to her buttock area.” Siegel examined Megan, beginning with a general
examination and then proceeding to a vaginal examination, which revealed “a milky
discharge coming from the vaginal area.” Siegel agreed this would not be a normal
finding with a small child. When Siegel used a Woods lamp on Megan’s legs,
“[they] lit up and that suggests seminal fluids.” Siegel stated that her findings were
“consistent with sexual misuse.” She obtained samples and swabs from Megan’s
vaginal area and agreed that some were “sent … to our hospital laboratory” and
some were “sent … as evidence.”

        ¶15     Discussing her review of Dr. Schellpfeffer’s records related to
Megan’s November 1998 hospital visit, Siegel noted that Megan had been operated
on for repair of a laceration similar to an episiotomy.4 Asked if that type of injury
was consistent “with any other sort of an injury beside a sexual misuse,” Siegel
responded, “Childbirth,” but she agreed childbirth would not have been the cause of
this injury “with a[n] 8-year[-]old child.”

        ¶16     On cross-examination, Siegel agreed that Megan had indicated to her
on September 5, 1999, that Ramirez had touched her buttock area, not her vaginal
area. Explaining how it then was that discharge was found in her vaginal area,
Siegel stated, “It’s very common for men to masturbate and ejaculate in that vicinity,


        4
          At trial the day prior, Dr. Judy Guinn had described an “episiotomy” as “a cut that a
surgeon or an obstetrician would make down through the posterior forshet (phonetic) here to allow
a baby to emerge from the vaginal canal.”



                                               7
                                                                                  No. 2021AP1590-CR




and the fluids can travel from the entire area.” She stated she had “separated the
labia and [Megan] had a large amount of fluid and [she] took a swab of that [outer
vaginal] area.” Siegel acknowledged it would be possible for someone to place
seminal fluid on another person and that a child could get redness on her vaginal
area if someone were to “rub” her there. When asked if Megan’s November 1998
injury could have been caused by her falling “on a hard object,” Siegel indicated
she “would expect other injuries noted if she had fallen on something.”

       ¶17       On redirect examination, Siegel agreed that as an ER doctor, she had
seen both “penetration type injuries which resulted from sexual misuse” as well as
straddle injuries. When asked if there was anything in Schellpfeffer’s description
of Megan’s November 1998 injury “that would make th[at] injury inconsistent with
a straddle type or accidental type injury,” Siegel responded that Schellpfeffer’s
report indicates Megan had “a laceration extending up one-half the length of [her]
vagina in the midline,” but there was “no documentation of other trauma,” such as
bruising or swelling, which she “would expect … if it was a straddle injury.” A
straddle injury, she indicated, would cause “extreme injuries” to external genitalia,
but the records showed that Megan’s external genitalia, as well as her urethral
orifice,5 “appear[ed] normal.” When asked if Megan’s November 1998 injury “was
consistent or inconsistent or diagnostic for sexual misuse,” Siegel responded, “it’s
pretty much diagnostic.” She further testified she had “[n]ever seen an injury of the
sort that was described by Dr. Schellpfeffer that was caused by anything other than
sexual misuse.”

       ¶18       Megan’s grandmother testified that on September 5, 1999, she picked
up Megan’s mother, Megan, and Megan’s younger brother from their residence and

       5
           Siegel testified that the urethral orifice “is where you would urinate from.”



                                                  8
                                                                     No. 2021AP1590-CR




brought them to the grandmother’s residence. The mother was “angry” and “upset.”
Megan’s mother told the grandmother that when she came home to her residence
that evening, “the door was closed, so she pushed it open.” When the prosecutor
asked the grandmother if she remembered Megan’s mother telling her “anything
about a chain on the door,” the grandmother responded, “If she did then that’s what
it was. It was a chain on the door and she pushed it open.” Referring to a report by
Detective John Gregory, which was in front of the grandmother during her
testimony, the prosecutor asked: “Do you remember [telling] Detective Gregory:
[‘]On the way to my house my daughter told me that when she got home she saw
[Ramirez] pulling up his shorts and the door was locked and she said the chain was
on the door.[’] …?” The grandmother responded, “I hear you reading it to me, and
I read it. Like I said, again I don’t remember. If I said it that night, it’s here on
paper.” The grandmother acknowledged telling Gregory that Megan’s mother had
told her that she “had to kick the door open.”

       ¶19    At her residence, the grandmother asked Megan what happened, and
Megan told her “that her daddy touched her bottom.” Also while there, Megan’s
mother called the police, and the responding officers eventually took Megan and her
mother to the hospital. On cross-examination, the grandmother agreed Megan
“would do what her mother wanted her to do.”

       ¶20    Gregory testified that he spoke with Megan’s mother at the hospital
on September 5, 1999. She informed him that when she returned to her residence
earlier that night, the door was locked, and when she unlocked and began to open
it, the chain was on the door, and she observed Ramirez “standing in front of the
doorway of her bedroom pulling up his shorts.” She “forced” her way in, breaking
the chain, “confronted [Ramirez] about what was going on,” and “I believe she went
into the bathroom and [Megan] was in the bathroom wiping herself off.” While

                                          9
                                                                       No. 2021AP1590-CR




“very upset, crying,” Megan’s mother also told Gregory that Megan had informed
her that when Megan had been taken to the hospital for vaginal bleeding in 1998, it
was because Ramirez had “had sexual contact with her which caused the injury to
her vagina.”

       ¶21     On September 6, 1999, Gregory interviewed Megan, her mother, and
her brother at the police department. He testified that the mother “took her time
reading each page” of her statement before signing it. Megan’s brother, interviewed
alone, told Gregory that he “s[aw] his dad take his shorts off” in the bedroom with
Megan and had seen “boogers” on the bed. Megan, with her mother present, told
Gregory that after her mother left the residence, Ramirez separated her and her
brother into different bedrooms, removed his shorts, had her face down with her
clothes off, laid on top of her, and “rubbed his private parts against her butt.”

       ¶22     On cross-examination, Gregory agreed he did not have an opportunity
to speak with Megan alone because “she wanted her mom in the room with her”;
the mother had told him that while she and Megan were at the grandmother’s house
on September 5, Megan told the mother that her November 1998 injury had been
caused by Ramirez; when he asked Megan about her surgery, she responded, “Dad
did it”; and the mother had informed him that Megan told her that Ramirez had
threatened to harm Megan’s grandmother.

       ¶23     Megan’s mother also testified. At the time of trial, she had been
married to Ramirez for two years but had been in a relationship with him for nine.
They have one child in common, Megan’s younger brother, who was five years old
on September 5, 1999. Megan is the mother’s daughter by another man.

       ¶24     The mother testified that relatives were at her and Ramirez’s residence
on September 5, 1999, and Ramirez was consuming alcohol. At some point in the

                                          10
                                                                             No. 2021AP1590-CR




evening, the mother drove Ramirez’s uncle home, leaving Ramirez “passed out on
the[ir] bed” with Megan and her brother as the only other persons at the residence.
She did not lock the door to the residence when she left, but when she returned, the
door was locked.

       ¶25    The mother testified that she unlocked the door and entered and that
there was no chain on it. When asked by the prosecutor, “Do you recall giving a
statement to a variety of people that once you unlocked the door you had to push
the door open?” the mother responded, “Possibly [I] could have said that.” When
then asked, “And you had to break the chain to enter the residence?” She stated, “I
didn’t break the chain, because the chain wasn’t on the door.” The following
exchange then took place:

              [Prosecutor:]            Would it be fair to say that you did not
              want to testify in this case, you didn’t want to be here today?

              [Megan’s mother:]       No.

              [Prosecutor:]         You do want to be here today? You
              don’t have any objection—

              [Megan’s mother:]       I don’t have a choice but to be here.

              [Prosecutor:]         I understand. That’s the reason you
              are here, because you have no choice, right?

              [Megan’s mother:]       But I have a right to plead the Fifth
              Amendment also.

              [Prosecutor:]           Well, are you pleading the Fifth
              Amendment?

              [Megan’s mother:]       I would rather, yes.

              [Prosecutor:]          Well, your Honor, I request the
              witness be instructed to respond to the question posed to her.

       ¶26    Outside the presence of the jury, Megan’s mother was eventually
granted immunity in relation to her testimony. The jury returned, and testimony


                                             11
                                                                      No. 2021AP1590-CR




continued with the mother again stating the chain was not on the door, and she did
not break it. When asked if she recalled telling her mother, Megan’s grandmother,
that she had to break the chain in order to enter the residence, Megan’s mother stated
she did not recall saying that. When asked how the chain “g[o]t pulled off the door
jam[b],” she stated she did not know.

       ¶27       Megan’s mother denied that on September 5, 1999, she told Officer
Larsen, ER nurse Halpin, and Dr. Siegel that when she returned home from dropping
off Ramirez’s uncle, the chain was on the door so she had to force it open. When
asked if she remembered telling Detective Gregory on September 6, 1999, “I
unlocked the door but the chain was on the door,” she responded, “I don’t remember
saying that.” When asked if she denied telling Gregory, “I pushed on the door hard
and the chain busted,” she stated, “I deny saying that because the chain wasn’t on
the door.” She again stated she did not know how the chain lock had gotten “busted
off the door.”

       ¶28       When the prosecutor asked her what she had observed when she
opened the door to the residence, she responded, “I didn’t see anything. My
daughter was in the bathroom.” When then asked where Ramirez was, she said,
“Laying down.” When asked if she remembered “telling your mother that you saw
the defendant pulling up his shorts outside [Megan’s] bedroom,” she responded, “I
don’t remember saying that.” When asked if she remembered telling Larsen that
she saw Ramirez “coming out of [Megan’s] bedroom pulling up his shorts,” she
stated, “Yes,” adding that she told Larsen this because she was angry. She further
testified she did not recall telling Halpin, Siegel, or Gregory that she saw Ramirez
coming out of Megan’s bedroom pulling up his shorts. However, when asked if it
was true that “at the time that you made this allegation about a sexual assault it was
based … partly upon what you saw when you entered that residence,” she

                                          12
                                                                     No. 2021AP1590-CR




responded, “No, I guess of what I thought might have happened, not of what I seen
happen because I was not there.” (Emphasis added.) She then stated that Ramirez
“was in the room … passed out.”

       ¶29    Megan’s mother stated she was angry because her family was at their
residence and Ramirez had been drinking. She subsequently testified she was angry
because one of Ramirez’s former girlfriends, “Tracy,” had called the residence that
day asking for Ramirez and indicating to the mother that she and Ramirez “were
supposed to meet somewhere,” and the mother thought that when Ramirez had left
the residence earlier in the day, it may have been to meet Tracy. The mother
testified: “I told [the] kids that they were not going to see their dad anymore” and
“that I was going to put [him] in jail because this had to stop. He wasn’t going to
make me a fool.”       Around this same time, she called her mother, Megan’s
grandmother, to come get them, and then she and the children went to the
grandmother’s house.

       ¶30    The mother testified that because she was angry, she told her mother
“that I had thought [Ramirez] had d[id] something” to Megan. She stated that at the
grandmother’s house, she spoke with Megan alone and told her “that I had called
the police on her dad and that they were probably going to make her go to the
hospital”; Megan said she did not want to go. When the prosecutor asked Megan’s
mother, “Why did you tell your daughter that she would probably have to go to the
hospital,” she responded, “Because of what I was going to say that [Ramirez]—that
I thought [Ramirez] had done something to her.” The mother testified that Megan
had never told her that Ramirez “had touched her in a bad way.” When asked,
“[Megan] had never told you while she was at your mother’s residence that when
she had gone to the hospital before he had done that to her; she hadn’t fallen in the
bathtub?” the mother responded that Megan “never said that.”

                                         13
                                                                       No. 2021AP1590-CR




       ¶31    Megan’s mother testified that she called the police from the
grandmother’s residence, and when Larsen arrived, she told him “me and [Ramirez]
had been fighting, he had pushed me and that he had done something—or I believed
he had done something to my daughter.” Larsen asked her if she understood what
she was accusing Ramirez of and that he would have to take them to the hospital “to
be checked out.” He then drove Megan and her mother to the hospital.

       ¶32    At the hospital, Megan’s mother told Halpin—she believed with
Larsen present—that Ramirez “had assaulted my daughter.” The mother asked
Siegel if she and Megan could go home, and Siegel said, “[N]o, that they had to do
this kit that they do when—cases like this,” and Megan started crying. Siegel and
Halpin then examined Megan.

       ¶33    When the prosecutor asked the mother if Megan ever said anything to
her about the time she went to the hospital in November 1998, the mother responded,
“She never said anything about ’98.” When asked if Megan ever told the ER nurse
that “when she went to the hospital before that she didn’t fall in the bathtub, that her
daddy did that,” the mother responded, “She didn’t say that.” The mother also
denied Megan ever said that to her or Megan’s grandmother. When asked if Megan
ever said that to Siegel, the mother stated that Megan “didn’t talk to the doctor.”

       ¶34    The prosecutor next asked the mother “what happened the day
[Megan] had surgery back in November of 1998.” The mother stated she had just
returned home from work and Megan was taking a bath; the children were home,
along with Ramirez and his cousin, Ignacio Carreon. Megan yelled, and when the
mother went into the bathroom, she observed blood “on the hump of the bathtub”
and Megan standing in the tub bleeding from between her legs, stating she had fallen
while trying to get out of the bathtub. The mother further testified that she took


                                          14
                                                                      No. 2021AP1590-CR




Megan to the hospital and told the nurse Megan had “fallen down in the bathtub.”
When asked multiple times if Schellpfeffer, the obstetrician/gynecologist who
performed the November 8, 1998 surgery on Megan, told her that Megan’s injury
“was consistent with sexual misuse” or asked her if someone could have sexually
assaulted Megan, the mother repeatedly responded, “No, he did not.”

       ¶35    The mother testified that she believed Ramirez had been drinking on
November 8, 1998, and she acknowledged that it was after the “incident” on that
day that he “stopped drinking,” he had “not been drinking” since, but then he was
“drinking again” on September 5, 1999.

       ¶36    The prosecutor asked the mother if she “remember[ed] telling
Detective Gregory that [Megan] said: [‘]Mommy, remember when I had surgery?
And I said: Yeah.[’] Do you remember telling anything about that to Detective
Gregory,” the mother responded, “No, because we never talked about that.” The
prosecutor then presented the mother with the signed statement she provided
Gregory on September 6, 1999. After she read the statement, the prosecutor asked
her: “Now, this statement is inconsistent in virtually every single respect with the
testimony that you gave here this morning regarding what happened on
September 5th, 1999, isn’t it?” The mother responded, “Yes.” She acknowledged
that in the statement, she stated: (1) “I pushed on the door [at their apartment] hard
and the chain busted”; (2) “[w]hen I got in the apartment, I saw [Ramirez] standing
in the doorway of my kids’ bedroom. He was pulling up his Dallas Cowboy shorts”;
(3) “[m]y son was in my bedroom because his father had told him to stay in there”;
(4) with Megan’s grandmother present, Megan “started crying and said that daddy
had touched her like he is not supposed to”; (5) Megan told her: “Mommy,
remember when I had surgery? I said: Yeah. And [Megan] said: I didn’t fall down,
daddy did that to me”; (6) “I said [to Megan]: Why didn’t you ever tell mommy?

                                         15
                                                                         No. 2021AP1590-CR




[Megan] was crying and said: Because daddy said he would hurt you and [her
brother] and that he would hurt Nana (grandma)”; (7) at the hospital, “[a] lady nurse,
… Donna, started talking to my daughter. I was there along with the police officer”;
(8) “[m]y daughter had a Teddy bear and she didn’t want to talk about it, but did
show us using the bear”; (9) Megan “turned the bear over and said: Daddy touched
her on the butt and pointed to the bear’s butt”; (10) “[t]he nurse talked to her some
more and my daughter said that daddy took her into her bedroom and told her
brother to stay in our room”; (11) “She said: Daddy pulled her shorts and underwear
down or off [and] had taken off his shorts and underwear. She said she was face
down on her tummy on the bed and daddy laid on top of her”; (12) “[t]he nurse
asked her how or where she was touched, and she said: Daddy’s private touched
her butt.”; and (13) “[m]y daughter was examined and the nurse told me that semen
was found on my daughter’s leg. The nurse showed me a blue light that was used
to find the semen.”         Upon further questioning by the prosecutor, the mother
acknowledged she signed the statement saying these things, but she denied having
told Gregory (5), (6), (9), and (11), admitted (7), and stated she did not recall (1),
(3), (4), (8), (10), (12), and (13).6

       ¶37       Megan’s mother denied that Megan ever communicated anything to
Halpin, Siegel or Larsen indicating she had been sexually assaulted by Ramirez,
adding that Megan “didn’t talk.” When asked if she recalled telling Larsen she had
spoken with her son and he had told her there were “boogers” on the bed in his
bedroom, she stated, “I didn’t say that because I never talked to my son.” In
response to separate questions by the prosecutor, Megan’s mother further denied
telling Larsen that her son had told her “that [Megan] was face down on the bed and


       6
           The prosecutor did not ask her further questions about (2).



                                                 16
                                                                             No. 2021AP1590-CR




that [Ramirez] was standing behind her with his pants down” and “that he had seen
[Ramirez] with his pants down laying on top of [Megan] on the bed.”

       ¶38     When the prosecutor referenced the trial having been previously
scheduled for a time months earlier and then asked her, “You knew you were
supposed to be in court; in fact you fled the jurisdiction, didn’t you, in order to avoid
going to court,” she responded, “Yes, I did leave.” She acknowledged that she spoke
with a person named Sandor Mariyani7 shortly after that earlier trial date had passed
and told him she “hoped that if I and the kids disappeared for a couple of days this
would all go away.”

       ¶39     Megan’s mother acknowledged she had written letters to the various
judges who had presided over Ramirez’s case since he was charged. The exchange
regarding her first letter, dated September 16, 1999—just eleven days after the
second assault—went as follows:

               [Prosecutor:]           [Do you see] where you wrote:
               [Ramirez] always has been an easy person to get along with,
               hardworking and most of all caring person and a good father.
               He would never hurt our children had he been sober or in
               the right state of mind.

                  Now, at that point you’re not saying he didn’t hurt your
               child. You’re just saying he was intoxicated, correct?

               [Megan’s mother:]       Yes.

               [Prosecutor:]         You go on to say … : I know what he
               has done is serious and you don’t do things to anyone,
               especially a child. I feel he needs help, mental and other
               treatment for drug and alcohol. It’s obvious he’s got a
               problem with drinking.




       7
         Although the record is not entirely clear on this point, it appears to indicate Sandor
Mariyani may have been an investigator for the State.



                                              17
                                                                         No. 2021AP1590-CR



                     Now, that was in a statement that you were making
              to Judge Kluka on September 16, 1999, correct?

              [Megan’s mother:]     Yes.

              [Prosecutor:]          …      [Y]ou      weren’t      telling
              [Judge Kluka] anything about a woman named Tracy, you
              weren’t denying that these sexual assaults had occurred, you
              were just saying that your husband, if he had done these
              things, must have done so because he was intoxicated,
              correct?

              [Megan’s mother:]     That’s what I wrote in the letter.

                 .…

              [Prosecutor:]        So on September 16th, 1999 when
              you wrote to Judge Kluka were you lying to her at that time
              as well?

              [Megan’s mother:] Yes, because I was afraid that
              possibly I would have charges on myself when I was trying
              to come out and say the truth by writing the letter.

(Emphasis added.)

       ¶40    Regarding an October 18, 1999 letter she wrote to the circuit court,
the mother acknowledged that it stated: “When we were at the hospital my daughter
was questioned about what had happened. She stated that something had happened
on that date, September 5th, 1999.” When the prosecutor then asked, “Now, in light
of that do you still deny that your daughter had disclosed to Officer George Larsen,
Nurse Halpin and Dr. Siegel that she had been sexually assaulted that day,” the
mother responded, “She never talked to them in the hospital. She never talked to
anyone.”

       ¶41    The mother acknowledged telling the circuit court in that letter: “I did
also say that I saw my husband in the doorway of our children’s room fixing his
shorts or something to that effect. My daughter was in the bathroom.” The
prosecutor then asked her, “So in light of that do you still deny the fact that you told



                                           18
                                                                      No. 2021AP1590-CR




people that you saw [Ramirez] standing in the doorway of his children’s room fixing
his shorts?”    She responded, “I don’t remember saying that,” but she then
acknowledged again that she wrote that in her letter.

       ¶42     The mother also acknowledged that she wrote in the October letter:
“They also state that I broke the door in. That’s a lie, because I said I pushed the
door in and the chain broke.” When the prosecutor asked her if, by sending the
letter to the circuit court, she was trying to tell the court the truth regarding what
happened on September 5, 1999, she responded, “I was trying to come out with the
truth, yes.” The prosecutor next asked, “And so the truth was that you did push the
door in and you did break the chain on September 5th, 1999; isn’t that true?” She
responded, “The chain was never on the door,” and she subsequently indicated she
was lying to the court in the letter “[b]ecause I had already lied to the police.” She
acknowledged that her letter to the court also stated, “[t]hey, being the nurse and
officer and myself in the room, [Megan] stated she had surgery, then she began
crying and they kept asking questions. She then said her dad did something.” The
mother then indicated she was lying to the court in writing that as well.

       ¶43     Related to a December 19, 1999 letter the mother wrote to the circuit
court, the mother acknowledged writing: “He would never hurt the children or
myself in any way if he was not drinking.” (Emphasis added.) The mother again
acknowledged that Ramirez had been drinking on September 5, 1999. When then
asked, “And it’s your view in this letter to [the court] that that’s why he hurt
[Megan],” she responded, “He didn’t hurt—he didn’t do anything.”

       ¶44     On cross-examination by Ramirez’s counsel, the mother agreed she
had at times been very angry with Ramirez because she had “found him with other
women,” and she indicated she had gotten a sexually transmitted disease she


                                         19
                                                                       No. 2021AP1590-CR




believed had come from Ramirez, so after that she always required him to wear a
condom when they had sex. She agreed she sometimes gets “out of control” when
she is very angry with Ramirez, acknowledging she once “chase[d] him down the
roads through Kenosha” and another time had “head-butt” him. She indicated she
had “in the past threaten[ed] to get him in trouble if he didn’t do what [she] wanted.”
She further agreed she had had family over on September 5, 1999, and was not
happy Ramirez was drinking that day; at some point, Ramirez was “so drunk that
he was unconscious”; she was “outraged because he had embarrassed” her; and
Carreon had brought Ramirez into the residence and laid him down in her and
Ramirez’s bedroom.

       ¶45    When asked by Ramirez’s counsel, “What happened in that
apartment,” the mother responded, “Nothing happened. I was upset with [Ramirez]
because he had been drinking and he had embarrassed me ….” When asked, “What
did you think about and what did you do?” she responded, “I don’t think I was
thinking much. I just was angry at him and wanted to pay him back or get him in
trouble some way for embarrassing me.” She indicated she called her mother and
left her residence “[b]ecause I was angry and because [Ramirez] was passed out and
we were supposed to go do something that afternoon.” She expressed that she
wanted Ramirez “gone” and to “[p]ay him back,” so she decided “[t]o call the police
and lie and say that [Ramirez] did something to my daughter.” The following
exchange occurred:

              [Ramirez’s counsel:] Did you do something to your
              daughter?

              [Megan’s mother:]     No, I didn’t do anything to her.

              [Ramirez’s counsel:] How long were you in that apartment
              … with the children there while Mr. Ramirez … was conked
              out on the bed?



                                          20
                                                                           No. 2021AP1590-CR



              [Megan’s mother:]      Say about 2 hours, 3 hours.

              [Ramirez’s counsel:] You did nothing to your daughter?

(Emphasis added.) The prosecutor objected with, “[a]sked and answered,” and the
court stated: “She said she did nothing to her daughter.” The exchange continued:

              [Ramirez’s counsel:] You’ve seen reports that indicate that
              that day sperm was found on your daughter’s underpants, on
              a piece of toilet paper in the bathroom, on your child’s thigh,
              and by her vagina. Did you have anything to do with that?

              [Megan’s mother:]      I had told her to lay down with her
              dad in the room.

                 .…

              [Ramirez’s counsel:] Why?

              [Megan’s mother:]      I don’t know.

              [Ramirez’s counsel:] How long did you have her lay down
              in there?

              [Megan’s mother:]      About ten minutes.

              [Ramirez’s counsel:] Did you do anything to her?

(Emphasis added.) The prosecutor again objected, and the court stated, “I think you
are going to have to be more specific other than that general question.”

              [Ramirez’s counsel:] You are now telling us that you told
              her to go lay down on a bed with her [step-]father?

              [Megan’s mother:]      Yes.

              [Ramirez’s counsel:] Isn’t it true that you put his semen on
              her?

              [Megan’s mother:]      No.

(Emphasis added.) Questioning continued:

              [Ramirez’s counsel:] What was she wearing when she laid
              down on that bed, that you told her to lay down on that you
              never told anyone before?


                                            21
                                                                         No. 2021AP1590-CR



              [Megan’s mother:]     She had shorts on that day.

Counsel asked how the chain lock “g[o]t broken that you said that day you had to
push the door in, and then you said later you didn’t push the door in?” and the mother
responded, “I don’t know.”

       ¶46    The mother indicated she, Megan, and Megan’s brother were
watching television in the living room after she returned from taking Ramirez’s
uncle home. Cross-examination continued:

              [Ramirez’s counsel:] So she wasn’t [o]n the toilet wiping
              herself with a piece of paper?

              [Megan’s mother:]     No.

              [Ramirez’s counsel:] Why did you tell them that?

              [Megan’s mother:]     Because I lied.

              [Ramirez’s counsel:] Why did you lie like that?

              [Megan’s mother:]     I was angry and I wasn’t thinking.

              [Ramirez’s counsel:] But not only did you tell the police
              things, how did your daughter come to tell the police things?

              [Megan’s mother:]     She really didn’t talk, but I—

              [Ramirez’s counsel:] She did talk.

              [Megan’s mother:]     I had told her to say what I wanted her
              to say.

              [Ramirez’s counsel:] What did you tell her to say?

              [Megan’s mother:]     That her dad had d[one] something to
              her.

              [Ramirez’s counsel:] Where were you when you told her to
              do this?

              [Megan’s mother:]     At home, before I called my mom.

              [Ramirez’s counsel:] What words did you tell her? What
              did you tell her?



                                           22
                                                         No. 2021AP1590-CR



[Megan’s mother:]     To say that her dad had touched her.

[Ramirez’s counsel:] And what did your daughter say when
you said to do this?

[Megan’s mother:]     She didn’t want to. She was crying.

[Ramirez’s counsel:] And how did she get those blue
underpants that had sperm on them?

[Megan’s mother:]     I don’t know.

[Ramirez’s counsel:] You’re telling us you told her to say
those things, but you’re saying you didn’t take a used
condom and wipe the stuff on the kid?

[Megan’s mother:]     No.

[Ramirez’s counsel:] That would be a terrible thing to
admit, wouldn’t it?

[Megan’s mother:]     Guess so.

   .…

[Ramirez’s counsel:] What went on for those 3 hours that
you now tell us you sat there with your children?

[Megan’s mother:] Talking to her, telling her that I was
going to call the cops on her dad, and that he was going to
be put in jail because I wasn’t going to have him make me
look like a fool anymore.

[Ramirez’s counsel:] So you were going to do big payback,
weren’t you?

[Megan’s mother:]     Yes.

   .…

[Ramirez’s counsel:] And you talked about seeing your
husband when you made your first police statement wearing
Dallas Cowboy shorts, pulling them up at the bedroom door
when you walked in, right?

[Megan’s mother:]     I don’t remember.

[Ramirez’s counsel:] … [L]ook at … Exhibit 39 ….

[Megan’s mother:]     Okay.



                              23
                                                                     No. 2021AP1590-CR



             [Ramirez’s counsel:] What did you tell the police that
             [Ramirez] was wearing when you came in the house …?

             [Megan’s mother:]    Shorts.

                .…

             [Ramirez’s counsel:] Was he working on the car [earlier
             that day] wearing Dallas Cowboy shorts?

             [Megan’s mother:]    No, he had army pants on.

                .…

             [Ramirez’s counsel:] Is there truth to the statement you
             gave, Exhibit Number 39?

             [Megan’s mother:]    No.

                .…

             [Ramirez’s counsel:] You instructed the child what to say?

             [Megan’s mother:]    I don’t remember.

             [Ramirez’s counsel:] Did you tell the child what to say if
             people asked her what happened?

             [Megan’s mother:]    At home, yes.

                ….

             [Ramirez’s counsel:] [Y]ou have never ever let her since
             that day talk to anyone, the police alone, the District
             Attorney alone, me alone, nobody; isn’t that correct?

             [Megan’s mother:]    Yes, that is true.

             [Ramirez’s counsel:] Because you didn’t want anyone to
             talk to that child alone because the truth would come out;
             isn’t that correct?

             [Megan’s mother:]    I was afraid of that, yes.

(Emphasis added.)

      ¶47    The mother testified Ramirez was still sleeping in the bedroom when
she and the children left to go to her mother’s house. Cross-examination continued



                                         24
                                                                         No. 2021AP1590-CR




with Ramirez’s counsel asking again: “But you’re testifying that you didn’t put his
sperm from a used condom on your child?” and Megan’s mother responding, “No,
I did not.”

         ¶48   Megan’s mother indicated that at the grandmother’s residence, she
took Megan into a back room and told her “[j]ust to say what I had told her to say
at the house before getting to my mom’s house,” which was “[t]hat her dad had
touched her in a way that he shouldn’t have … [i]n her privates.” She further
testified that Larsen told them “that we had to go to the hospital. She would be
examined because I was accusing him of a serious crime.”

         ¶49   Ramirez’s counsel asked, “Did you ever leave your husband alone
with your daughter after taking [his uncle] home,” to which Megan’s mother
responded, “No.” Counsel then asked, “But you sit here today and testify you don’t
know how the sperm got on the kid’s underpants?” Megan’s mother responded,
“No, I do not.” Questioning continued:

               [Ramirez’s counsel:] But you sit here today and you tell us
               you told your daughter to lay down next to her [step-]father
               while her [step-]father is inebriated out cold on a bed?

               [Megan’s mother:]     Yes, I did.

         ¶50   The mother agreed that when they returned to their residence the
morning of September 6, 1999, Megan and her brother were “playing normally” and
talked with Ramirez’s brother, Angel, “like a regular day.” Counsel continued:
“Because they hadn’t been traumatized by [Ramirez] the day before?” Megan’s
mother responded, “No.” Megan’s mother indicated that in the post-September 5,
1999 letters she wrote to the circuit court, she did not write the things about which
she was testifying in court that day because she was afraid of being prosecuted for
lying.


                                           25
                                                                              No. 2021AP1590-CR




        ¶51     The mother indicated she and Ramirez had had sex the morning of
September 5, and she put the used condom in the bathroom. When asked, “Did you
touch that condom again,” she responded, “No.”8

        ¶52     Related to the November 8, 1998 incident, the mother indicated that
when she came home from work that evening, she found Megan taking a bath.

                [Ramirez’s counsel:] And when you came home and the
                child is in the bathtub, what do you see?

                [Megan’s mother:] She was taking a bath and I walked
                out of the room, but then she had screamed out for me to
                come to the bathroom. When I got in the bathroom she was
                standing in the bathtub and there was blood on the bathtub.
                She was bleeding.

The mother dressed Megan and took her to the hospital. Questioning about this
injury continued:

                [Ramirez’s counsel]: Did you look at all for anything that
                could have caused that?

                [Megan’s mother:] Well, there was blood on the bathtub.
                Our bathtub is a—like old fashioned and it has a hump, a lip,
                I don’t know how to describe it. And there was blood all
                over the floor inside where she was trying to get out.

                   ….

                [Ramirez’s counsel:] Did she tell you what happened?

                [Megan’s mother:] She said she was trying to get out of
                the bathtub and she slipped and hit herself in between her
                legs [on] the edge of the bathtub.

                [Ramirez’s counsel:] That’s what you’re saying here
                today?



        8
          We could find no evidence presented at trial indicating a used condom was found in the
bathroom wastebasket or anywhere else in Ramirez’s residence when evidence technicians
searched it on September 5, 1999.



                                              26
                                                                       No. 2021AP1590-CR



             [Megan’s mother:]      That’s what she told me, yes.

      ¶53    The mother testified that Megan did not talk with anyone at the
hospital and that the mother herself “really didn’t even have a chance to talk to
anybody.” When counsel asked, “Don’t you recall them asking if she was sexually
assaulted and her denying it,” the mother replied, “They never asked that.” Counsel
responded: “Mrs. Ramirez, they did ask it,” but counsel withdrew the question
following an objection by the prosecutor.

      ¶54    The mother indicated that after surgery, Schellpfeffer told her Megan
was fine and that she asked him “if there’s anything wrong,” to which he said,
“[N]o” and “he would see [Megan] in two weeks so he could re-check her.” The
mother again denied that anyone at the hospital expressed a concern that Megan
may have been sexually assaulted.

      ¶55    When asked, “How can your children forget what you told them to
do,” she responded, “I don’t think that they do. I’m sure they feel something every
day, because their dad’s not there.” Testimony continued:

             [Ramirez’s counsel:] … If [Megan] had been really
             sexually assaulted, would you have taken her for counseling
             and therapy?

             [Megan’s mother:]      Yes.

             [Ramirez’s counsel:] But you didn’t take her, did you?

             [Megan’s mother:]      No.

             [Ramirez’s counsel:] Why?

             [Megan’s mother:]      She didn’t need to go to counseling.

             [Ramirez’s counsel:] Why?

             [Megan’s mother:]      Because nothing happened.




                                           27
                                                                               No. 2021AP1590-CR




        ¶56     Officer Kenneth Duffy testified that he was dispatched to Ramirez’s
residence on the night of September 5, 1999. Upon entering the residence, he
observed Ramirez to “appear[] to be sleeping on a couch” while holding a “large
knife” in his hand with a wrench lying between his legs. When another officer
knocked the knife away, Ramirez was roused, Duffy announced they were police,
and Ramirez resisted arrest with a struggle ensuing. Kenosha Police Officer John
Gray testified regarding evidence he recovered from Ramirez’s residence the night
of September 5, 1999, including “tissue paper … from the wastebasket in the
bathroom,” and two photos he took of a broken chain lock on the door to the
residence.

        ¶57     A DNA analyst from the state crime lab testified to her testing of the
underwear, toilet paper, and vaginal swabs/smear from the “rape kit.”                      Her
testimony and report related to that testing indicated that Ramirez’s semen and/or
sperm cells were identified on each item.9

        ¶58     A pediatrician with the Child Protection Center of Children’s Hospital
of Wisconsin, Dr. Judy Guinn, testified that she does the “medical portion” of team
assessments related to children who are suspected of being victims of abuse. In
cases of alleged sexual abuse, she does “a specialized examination of the genital and
anal areas.” She confirmed she had been trained “in making a diagnosis in the

        9
         In Ramirez v. Tegels, 963 F.3d 604, 609 n.3 (7th Cir. 2020), the United States Court of
Appeals for the Seventh Circuit summarized the DNA analyst’s evidence this way:

                Specifically, there was a one in 20 trillion chance that the DNA
                evidence from the tissues and underwear belonged to a Hispanic
                male other than Mr. Ramirez, and a one in 400,000 chance that the
                DNA found on the vaginal swab belonged to a Hispanic male
                other than Mr. Ramirez.

Ramirez does not dispute that it was his semen/sperm found on Megan’s vagina, underwear and
the toilet paper.



                                               28
                                                                      No. 2021AP1590-CR




difference between intentionally inflicted injury and an accidentally inflicted
injury,” adding that “[m]ost pediatricians receive some training in that area, but not
as much training as a person who specializes in child abuse,” such as herself.

       ¶59    Questioned about straddle injuries, which she described as occurring
“when a person falls with their legs … spread open onto an object,” Guinn explained
that “the injuries you would expect to find in a straddle injury would be external,
that means on the outside of the skin and usually … in the upper genital area … and
… one sided.” Guinn had reviewed Schellpfeffer’s report related to his November
8, 1998 treatment of Megan, and the report described Megan’s vaginal injury as a
“laceration extending up one-half the length of [her] vagina in the midline” and also
indicated the “external genitalia” “appeared intact.” According to Guinn, the nature
of Megan’s injury was “inconsistent with a straddle injury” but was instead
“penetrating trauma,” because her injury was “inside the vagina. So that means that
object that penetrated would have to go through the hymen, through the hymenal
opening and into the vagina. So it’s an internal injury and that means something
had to penetrate inside.” The prosecutor noted Schellpfeffer’s reference to the
injury as “an episiotomy type injury,” and Guinn expressed that this type of injury
was “inconsistent with a straddle injury” and was “diagnostic for sexual abuse.”
The prosecutor asked if the injury would be consistent or inconsistent with the
history “in this case” that in November 1998 Megan slipped and fell on the lip of
the tub. Guinn responded, “That would be inconsistent. A mere slip and falling on
the edge of the bathtub would not cause penetrating trauma such as was described
in the medical records. It would be a more external injury.” She testified that based
upon the report, the cause of Megan’s November 1998 injury “would have to be an
object that is long enough to penetrate inside the vagina.” When asked “if a child
were to state that her daddy had tried to insert his pee-pee inside of her, would the


                                         29
                                                                      No. 2021AP1590-CR




injury that was described in Dr. Schellpfeffer’s report be consistent or …
inconsistent with that sort of a history,” Guinn responded, “That would be consistent
with that statement.”

       ¶60    On cross-examination, Guinn read from the November 1998 ER
notes, which indicated Megan “denie[d] that anyone touched her in that area.”
Guinn agreed the records from this ER visit indicated Megan had had a pap smear,
but Guinn added, “a pap smear doesn’t really look for sperm or semen. You would
need to do a specialized sexual assault evidence kit.” Counsel for Ramirez remarked
about the injury being a “half inch tear going an inch up [the] vagina,” stated that
“[a] man’s penis is usually bigger than a half inch wide,” and asked Guinn,
“wouldn’t the tear be bigger than a half an inch on the outside.” Guinn responded,
“Not necessarily at all, no. Many times we see kids who have been sexually abused
and have been penetrated and they show no injury.”

       ¶61    When asked on redirect examination if there was anything about the
statement in the November 1998 notes that “[m]other states that child slipped at the
edge of an old bathtub with a curved lip and has been bleeding since” that changed
her opinion “regarding the type of injuries that [Megan] suffered,” Guinn responded,
“No, I still stick with my original opinion.” Guinn further testified that she had seen
penetrating-type injuries to children “about 100 times” and in every instance, it was
due to sexual abuse, adding, “If it’s penetrating trauma that is consistent with sexual
abuse. I have seen straddle injuries that were accidental, but those were not
penetrating trauma.” She stated again that “the injuries present on this exam are
consistent with penetrating trauma into the vagina and with sexual abuse,” and the
findings “would be considered diagnostic of sexual abuse.”




                                          30
                                                                       No. 2021AP1590-CR




       ¶62    Schellpfeffer also testified for the State. To ensure he testified,
however, prior to the start of trial, the State had granted Schellpfeffer immunity
related to his testimony. Schellpfeffer required immunity because he feared that, as
a statutorily mandated reporter of suspected child abuse, his testimony otherwise
could be used to prosecute him for failing to report a suspected sexual assault of
Megan following his treatment of her on November 8, 1998. Ramirez requested to
cross-examine Schellpfeffer about this grant of immunity, but the circuit court
denied the request.

       ¶63    Schellpfeffer testified that he treated Megan in an ER on November 8,
1998. He observed “active bleeding from the genital area” and “a laceration in [her]
perineum, … [t]he area between her vagina and rectum.” He testified that “[t]he
history that I obtained in the [ER] was that the mother was working and that [she]
had been called from work to come to attend to this injury to her daughter, which
was said to be a straddle injury on a bathtub.” He determined the injury was “not
wholly inconsistent with the possibility of a straddle injury, but not at all typical of
a straddle injury or straddle injuries that … I have taken care of.” “[D]epending
upon what is straddled,” he stated, “most straddle injuries … usually result[] in some
type of external injury; either with a hematoma or collection of blood in the genital
area, or some type of laceration to the external genitalia and possibly the internal
genitalia.” In Megan’s case, “there was no hematoma and no other evidence of
external injury besides what I described in my dictation and in the questions you
just asked.” Schellpfeffer said he had asked Megan’s mother if Megan could have
been sexually abused, and she responded, “No.”

       ¶64    While operating on Megan, Schellpfeffer observed she had a “gaping
cut,” “very much like an episiotomy,” in her lower vagina and perineum. “The
laceration into the vagina was approximately 2 to 2-and-a-half centimeters; and the

                                          31
                                                                      No. 2021AP1590-CR




laceration into the perineum was approximately a centimeter.” When asked if her
injury was “consistent or inconsistent with a penetrating type injury,” he responded,
“It is certainly consistent possibly with a penetrating injury, yes.” He noted that in
his pre-operative notes, his assessment indicated “perineal laceration from straddle
injury,” but he added that the “straddle injury” portion was “based upon the history”
given to him, not upon his observations of the injury. When asked hypothetically,
“[I]f [Megan] had told you or some other person on November 8th, 1998 that this
injury … was the result of her daddy putting his pee-pee inside of her, would this
injury that you observed be consistent or inconsistent with that sort of process,”
Schellpfeffer responded, “It certainly would be consistent.” When asked, “[T]he
injury [Megan] suffered was more consistent with a sexual assault than with a
straddle injury, wasn’t it?” Schellpfeffer responded, “You’re asking again the
hypothetical, if there was the history of sexual assault … Yes.” Schellpfeffer
testified that the day after surgery, he again asked the mother “if there was any
chance that [Megan] could have been sexually abused,” and she responded, “No.
There was no sexual abuse that she knew of.” Schellpfeffer testified that he called
Megan’s pediatrician the Monday after the surgery and expressed his continued
concern there may be sexual abuse, so the pediatrician could “follow[] up when he
saw her.”

       ¶65    On cross-examination, Schellpfeffer acknowledged he was aware that
before he arrived in the ER, an ER nurse had asked Megan if anyone had “touched
her in that area” and that she denied such had occurred. He agreed that “as a
mandated reporter,” if he “really had felt … [Megan] was evidencing sexual abuse
or misuse … [he] would have reported it,” but he did not report it “because [he]
didn’t believe that at that time.” He agreed that he had done a pap smear and vaginal
culture of Megan and found “no sperm or semen.”


                                         32
                                                                   No. 2021AP1590-CR




      ¶66    For Ramirez’s case-in-chief, two of Ramirez’s brothers, Carreon, and
an uncle testified. His brother Marcus Nord testified that he was at Ramirez’s
residence earlier in the day on September 5, 1999, and Megan’s mother was upset
with Ramirez because he and the brother had both gotten “pretty drunk” while
working on a truck. Ramirez was wearing “work pants” and boots.

      ¶67    Carreon testified that he was at Ramirez’s residence on November 8,
1998, and Ramirez and the mother were getting Megan and her younger brother
ready for a bath, so Carreon went back to his adjacent residence. Related to
September 5, 1999, Carreon testified that on that day, Ramirez was working on his
truck and wearing “work pants.” At some point in the afternoon, Ramirez “passed
out,” and Carreon put him on his bed, where Ramirez “went back to sleep.”
Megan’s mother “didn’t like” that Ramirez was intoxicated, “but he was sleeping.
She was satisfied with that, I guess.” At some point, Carreon went to his residence
and did not hear anything happening in Ramirez’s residence until he heard police
officers at Ramirez’s door.

      ¶68    Ramirez’s uncle, Diego Ramirez, testified that Ramirez was
“completely drunk” on September 5, 1999. When Carreon brought Ramirez inside
and put him on his bed, Megan’s mother knew Ramirez was drunk, but she “was
happy” nonetheless. Later that afternoon, Megan’s mother drove Diego home,
about a fifteen-minute drive from her residence.

      ¶69    Ramirez’s brother Angel Ramirez testified that he was living with
Ramirez on September 5, 1999. He indicated that if a person was standing outside
of the door looking into the residence with the chain on the door, the person would
not have been able to see the doorway to the bathroom, the “hall area between the
bathroom and the children’s bedroom,” or into the children’s bedroom doorway.


                                        33
                                                                    No. 2021AP1590-CR




Referring to a photograph taken from the perspective of a person standing outside
the door and looking into the residence with the door fully open, Angel agreed that
the photo “doesn’t show anything that would show any entrance to a child’s room.”

       ¶70    Angel further testified that when he returned to the residence around
5:00 p.m. on September 5, 1999, he observed Ramirez asleep in Ramirez’s room,
and Megan’s mother “seemed like … she had an attitude or something.” Angel left
the residence around 7:00 p.m. and returned when Megan and her brother were
watching cartoons the next morning. They appeared “[l]ike … average child[ren]
watching cartoons,” and neither child said anything to him about anything that had
occurred the night before. Angel also testified that Megan’s mother “was jealous of
any women.”

       ¶71    The jury found Ramirez guilty of the two November 8, 1998 sexual
assault counts and the September 5, 1999 child enticement and sexual assault
counts. After years of significant postconviction litigation, Ramirez’s case landed
back before the circuit court to decide whether Ramirez was entitled to a new trial
on the basis that (1) his Confrontation Clause rights were violated by the admission
at trial of Megan’s and her younger brother’s incriminating statements through other
witnesses—and thus without Ramirez having the opportunity to cross-examine the
children—and/or (2) Ramirez was not permitted to cross-examine Schellpfeffer in
relation to the grant of immunity the State afforded him to ensure he testified. The
court concluded Ramirez is entitled to a new trial on both grounds, and the State
appeals.

                                    Discussion

       ¶72    As indicated, whether Ramirez is entitled to a new trial turns on two
issues. The first is whether the following statements admitted at trial through

                                        34
                                                                          No. 2021AP1590-CR




witnesses other than Megan or her brother were testimonial—thus implicating the
Confrontation Clause—and, if so, whether their admission nonetheless was
harmless: (1) Megan’s statements to Halpin, Siegel and Larsen at the hospital on
September 5, 1999, indicating Ramirez had engaged in sexual conduct with her that
day and on November 8, 1998, (2) Megan’s statements to Gregory at the police
station on September 6, 1999, related to the same sexual conduct, and (3) Megan’s
younger brother’s statements to Gregory at the police station on September 6, 1999.
The second issue is whether the circuit court erred in precluding Ramirez from
cross-examining Schellpfeffer regarding the immunity the State granted him for his
testimony, and if the court did err, if such error violated Ramirez’s right to a fair
trial or was harmless. Because we conclude that (1) the statements in question were
either nontestimonial or their admission at trial was harmless, and (2) even if the
court erred in not allowing the requested cross-examination of Schellpfeffer, such
error was harmless, we reverse the circuit court’s order for a new trial and direct the
court to reinstate Ramirez’s amended judgment of conviction entered on October
29, 2013.

Relevant Law

       ¶73    We review independently whether a Confrontation Clause violation
has occurred. State v. Keller, 2021 WI App 22, ¶18, 397 Wis. 2d 122, 959 N.W.2d
343. In Keller, we explained:

              [A] defendant’s right to confrontation is violated if the
              [circuit] court receives into evidence out-of-court statements
              by someone who does not testify at the trial if those
              statements are “testimonial” and the defendant has not had
              “a prior opportunity” to cross-examine the out-of-court
              declarant.… “[C]onfrontation challenges begin with an
              analysis of whether the out-of-court statements used against
              a defendant are “testimonial.” “If the statements are not
              testimonial, the Confrontation Clause is not implicated.”



                                           35
                                                                         No. 2021AP1590-CR




Id., ¶19 (first alteration in original; third emphasis added) (quoting State v. Mattox,
2017 WI 9, ¶24, 373 Wis. 2d 122, 890 N.W.2d 256). We further explained that

              “[i]n determining whether an out-of-court statement is
              testimonial, we must decide ‘whether, in light of all the
              circumstances, viewed objectively,’ the ‘declarant is acting
              as a witness against the defendant ....’” State v. Nelson,
              2021 WI App 2, ¶29, 395 Wis. 2d 585, 954 N.W.2d 11
              (citation omitted). We make such a decision “by considering
              whether the ‘primary purpose’ of the statement was to
              ‘gather evidence for [the defendant’s] prosecution’ or
              ‘substitute for testimony in a criminal prosecution.’” Id.
              (citation omitted). Factors relevant to our analysis include:
              “(1) the formality/informality of the situation producing the
              out-of-court statement; (2) whether the statement is given to
              law enforcement or a non-law enforcement individual; (3)
              the age of the declarant; and (4) the context in which the
              statement was given.” Mattox, 373 Wis. 2d 122, ¶32
              (footnote omitted).

Keller, 397 Wis. 2d 122, ¶20 (second alteration in original).

       ¶74    If a circuit court erroneously permits admission of a testimonial out-
of-court statement at trial, the error may nonetheless be harmless and thus not
require reversal of the conviction. “An error is harmless if there is no reasonable
possibility that the error affected the outcome of the trial.” State v. Spencer, 2022
WI 56, ¶39, 403 Wis. 2d 86, 976 N.W.2d 383 (citation omitted). It is the State’s
burden to establish beyond a reasonable doubt that an error is harmless; whether the
State has done so is a question of law we review independently. State v. Ziebart,
2003 WI App 258, ¶26, 268 Wis. 2d 468, 673 N.W.2d 369. “In determining whether
an error is harmless, we weigh the effect of the [circuit] court[’]s error against the
totality of the credible evidence supporting the verdict.” Id.




Statements to Nurse Halpin and Dr. Siegel



                                           36
                                                                      No. 2021AP1590-CR




       ¶75    Ramirez contends Megan’s September 5, 1999 statements at the
hospital were testimonial and thus implicate the Confrontation Clause. Considering
the factors our supreme court laid out in Mattox, 373 Wis. 2d 122, ¶32, we conclude
her statements to Halpin and Siegel were all nontestimonial and, thus, do not
implicate the Confrontation Clause because they were made for the primary purpose
of medical treatment, not “to ‘gather evidence for [Ramirez’s] prosecution’ or
‘substitute for testimony in a criminal prosecution.’” See id., ¶¶32-33 (citation
omitted).

       ¶76    Ramirez asserts that certain circumstances surrounding Megan’s
statements in the ER require a determination that the statements were testimonial:
Larsen had told Megan’s mother they “had” to go to the hospital and he drove
Megan and her mother there; Larsen was present during some of Halpin’s
conversation with Megan in the ER and even himself engaged in some discussion
with Megan, during which she made statements incriminating Ramirez; Megan’s
statements concerned incidents that had already occurred rather than a continuing
safety threat; after Megan was discharged from the ER, Halpin provided the police
with a written statement as to what had occurred in the ER; and samples taken from
Megan’s private areas were sent not only to the hospital lab but also to the “crime
lab.” While we consider each of these points, at the end of the day, we are guided
by the direction our supreme court has provided in Mattox for analyzing such cases.

       ¶77    Related to the first testimonial/nontestimonial factor, in Mattox, our
supreme court stated that the “typewritten, titled, and signed” nature of a toxicology
report at issue in that case amounted to only “slight formality” and “d[id] not imply
a testimonial purpose in a way that traditionally formal attestations, such as
notarization or certification, might.” Mattox, 373 Wis. 2d 122, ¶34. In Nelson, 395
Wis. 2d 585, ¶31, we stated, “The same [could] be said” of a medical report detailing

                                         37
                                                                       No. 2021AP1590-CR




an examination conducted on a sexual assault victim, which report was, as we noted
later in Keller, “typed and titled,” see Keller, 397 Wis. 2d 122, ¶21. In Keller, we
concluded that the “unsigned, untyped, untitled oral statements” confidential
reporters in that case made to Child Protective Services workers related to the
reporters’ concerns for a child’s welfare “do not even reach the level of ‘slight
formality’ of the reports in Mattox or Nelson. Id., ¶22. As to the second Mattox
factor, the United States Supreme Court has plainly expressed that statements made
to non-law enforcement individuals are “much less likely to be testimonial than
statements to law enforcement officers.” Ohio v. Clark, 576 U.S. 237, 246 (2015);
see also Mattox, 373 Wis. 2d 122, ¶34.

       ¶78    In the case now before us, Megan’s statements to Halpin and Siegel
at the hospital were not written (much less signed and notarized) or made at a
preliminary hearing, before a grand jury, at a former trial, at a police station or even
to a police officer, even though Larsen overheard some of Megan’s statements to
Halpin. Rather, they were oral statements made by an eight-year-old girl directly to
a nurse and doctor in connection with their examination of her in the ER of a
hospital.

       ¶79    As to the third factor, Megan’s age, Ramirez states that because
Megan was eight years old at the time she made the statements, she “could
reasonably be expected to know that statements to the police (and others to whom
the police have directed them) can be used to secure criminal punishment.” While
we agree an eight-year-old child “could reasonably be expected to know” that
statements he or she makes to the police in response to questioning “can be used to
secure criminal punishment,” we disagree that a child of that age would know that
statements made to a nurse and doctor in an emergency room might later be used to
secure criminal punishment against someone, even if a law enforcement officer

                                          38
                                                                                   No. 2021AP1590-CR




directs and drives the child to the hospital and is present in the room while one of
the medical professionals questions the child. Furthermore, there is no indication
in the record that when Megan made her statements to Halpin and Siegel during the
examination, Megan—the declarant—would have had any idea that samples taken
from her private areas might be sent to a “crime lab,” or what that might mean, or
that Halpin might later provide police with a written statement as to her and Siegel’s
conversation with Megan and the results of the examination.10                        Additionally,
Megan’s previous treatment by Schellpfeffer in the ER of the same private area of
her body in November 1998 would only have underscored for Megan that Halpin




        10
            In arguing that Megan’s statements at the hospital were made for the primary purpose
of prosecution of Ramirez and thus were testimonial, Ramirez states that her statements “made to
[Halpin] were immediately memorialized and turned over to the police.” The fact that Halpin
provided the police with a written statement after Megan’s discharge does not go far toward
convincing us that Megan’s statements at the hospital were made for the primary purpose of
prosecuting Ramirez. At the time Halpin provided the written statement to police, like today,
nurses and physicians were mandatory reporters and, as the relevant statute read at the time, they
were required by law to “immediately inform” certain authorities “of the facts and circumstances
contributing to a suspicion of child abuse” if they had “reasonable cause to suspect that a child seen
in the course of [their] professional duties has been abused.” See WIS. STAT. § 48.981(2), (3)
(1999-00). One way in which a mandatory reporter could satisfy the reporting requirement under
the statute would be to report the suspected abuse to a county social services, human services, or
child welfare agency, WIS. STAT. §§ 48.981(3), 48.02(2g), 46.22, 46.23 (1999-00); another way
would be to report the suspected abuse to “the sheriff or city, village or town police department.”
Sec. 48.981(3) (1999-00).

         We note that failure of a nurse or physician to provide such information could result in
criminal prosecution of the professional, with potential punishment including imprisonment of up
to six months. WIS. STAT. § 48.981(6) (1999-00). Thus, the fact that Halpin provided a written
statement to law enforcement related to the questioning and examination of Megan gives little
indication Halpin and Siegel were questioning her for the primary purpose of securing evidence for
Ramirez’s prosecution as opposed to for the purpose of treating her, but simply indicates they were
complying with their mandatory after-the-fact duty under the law and avoiding prosecution by
doing so. Additionally, since the police were on site at the hospital on September 5, 1999, it would
seem that providing them with the report would be the easiest way to satisfy the reporting
requirement.




                                                 39
                                                                                   No. 2021AP1590-CR




and Siegel were speaking with and examining her for the purpose of providing her
medical care.11

       ¶80       As to the fourth factor—“the context in which the statement was
given”—we have already touched upon that. Megan made her statements in an ER
to two medical professionals who were clearly showing concern for her health and
providing her with care. They began with a standard/generic medical examination
before questioning and examining Megan specifically in relation to the alleged
sexual assault from that day. Megan, and any other eight-year-old girl in her
position, would have answered their questions believing that by doing so she was
facilitating their efforts to address her health needs. See Giles v. California, 554
U.S. 353, 376 (2008) (“[S]tatements to physicians in the course of receiving
treatment” generally will not be precluded by the Confrontation Clause.).

       ¶81       Considering the Mattox factors, we conclude that the statements
Megan made to Halpin and Siegel were not made for the primary purpose of
“gather[ing] evidence” for or “substitut[ing] for testimony in” a criminal
prosecution. See Mattox, 373 Wis. 2d 122, ¶¶32-33. This is true even as to the
statements about her November 8, 1998 hospital visit, by which she indicated her
vaginal injury on that date was caused by Ramirez “trying to put his pee-pee inside

       11
            The State highlighted this point at the postconviction hearing before the circuit court:

                 [I]n November of 1998, [Megan] had been brought to the
                 emergency room for medical treatment. And she answered
                 questions there based on the questions asked to her by the ER
                 nurse and by the ER doctor, and there was no officer in the room
                 at that time. So [Megan], when she’s answering these questions
                 in September of 1999, is doing what she did in November of 1998,
                 answering questions so that she can receive proper treatment
                 inasmuch as an eight-year-old can imagine that. But she knows
                 that when a doctor asks questions, you answer them, and when a
                 nurse asks questions, you answer them because they’re going to
                 take care of you.



                                                  40
                                                                       No. 2021AP1590-CR




of her.” These statements, too, were made for the primary purpose of facilitating
her medical treatment on September 5, 1999.

       ¶82    Halpin testified that as a nurse, she takes care of children “for any type
of medical or emotional problems” and that to properly treat a patient for a current
condition, it is necessary to know relevant history. She explained that it was “part
of [her] responsibility to obtain the history from a patient,” adding that a nurse
“need[s] a history to find out current events that are going on with the patient; their
history in the past, past medical problems.” A nurse tries to find out “what they’ve
been treated for before, and what’s been surrounding the current reason that they’re
in the emergency department.” After obtaining the history, a nurse “document[s] it
on the chart,” “share[s] that with the physician,” and then the nurse and physician
“take care of the patient together.”

       ¶83    This is just common sense and comports with common experience
seeing medical professionals. Specific to child sexual abuse, when a child presents
with alleged sexual abuse, certainly it is important for the medical provider to know
if, how, and when the child may have been abused before in order to properly
address the child’s present physical and psychological health needs. See Nelson,
395 Wis. 2d 585, ¶35 (noting that a sexual assault victim’s “mental health …
understandably could be significantly compromised as a result of the assault”).
Relatedly, it is relevant for the provider to inquire as to what treatment the child
previously received for related medical concerns. Indeed, learning a young girl had
been cut in her vaginal/perineum area months earlier due to her step-father “trying
to put his pee-pee” inside of her would inform a nurse and doctor to ask related
questions and consider examining the girl further to see if similar injuries had
occurred in the present instance. It would be a poor medical professional indeed
who upon a patient presenting medical complaints did not inquire about relevant

                                          41
                                                                                 No. 2021AP1590-CR




history.      All of the statements Megan made to Halpin and Siegel were
nontestimonial as they were made for the primary purpose of facilitating proper
medical care for Megan, not prosecuting Ramirez, and the circuit court did not err
in allowing their admission at Ramirez’s 2001 trial.12

Statements to Officer Larsen and Detective Gregory

        ¶84     Megan’s communications made directly to Officer Larsen at the
hospital on September 5, 1999, and her and her brother’s statements given to
Detective Gregory at the police station on September 6, 1999, may stand on different
footing as Larsen and Gregory were clearly engaged in investigating Ramirez for
possible prosecution when they were questioning Megan and her brother.
Ultimately, however, we need not decide if these statements were testimonial and
erroneously admitted at trial because even if they were, their admission was
harmless.

        ¶85     Larsen testified that using a Teddy bear he had given her, Megan
“showed [him] on the … bear where daddy had touched her with his private,” and
as he was talking with Megan, she told him that Ramirez “had put her face down …
        12
            Ramirez’s contention that Megan’s statements at the hospital were testimonial includes
his brief assertion that “all the statements concerned incidents in the past, rather than an ongoing
threat: Ramirez had already been arrested.” In support of this assertion, he points to the federal
district court’s statements that Megan’s statements “were not spontaneous and were not made in
the context of an ongoing emergency.” Ramirez v. Tegels, 413 F. Supp. 3d 808, 820 (W.D. Wis.
2019).

         Regardless of spontaneity or an ongoing emergency, the ultimate question remains whether
her statements were made for the primary purpose of “gather[ing] evidence” for or “substitut[ing]
for testimony in” a criminal prosecution. State v. Mattox, 2017 WI 9, ¶¶32-33, 373 Wis. 2d 122,
890 N.W.2d 256. As that question relates to this case, we do not consider whether Megan’s
statements were made for the primary purpose of facilitating her immediate safety as opposed to
the prosecution of Ramirez but whether they were made for the primary purpose of facilitating her
health care as opposed to the prosecution of Ramirez. Thus, whether Ramirez had been arrested at
the time Megan made her statements has little relevance to the particular consideration at issue
here.



                                                42
                                                                      No. 2021AP1590-CR




on the bed,” “put his private by her pooh-pooh,” and “when she went to the
bathroom she went to wipe herself and there was brown stuff on there.” Also, when
Megan’s mother informed Larsen that Megan had previously gone to the hospital
for vaginal bleeding the mother believed was due to a bathtub fall, Megan
interjected, “No, my daddy did it.” Less clear is whether Larsen was indicating that
Megan was talking to him, talking to the nurse, or talking to both of them when the
prosecutor asked him if he “hear[d] any conversation between either [himself] and
[the nurse] and [Megan] about any incident that occurred in November of 1998,”
and Larsen responded, “Yes. [Megan] also stated that when this happened before
that it was her dad.”

       ¶86    Gregory testified that Megan’s brother told him he “s[aw] his dad take
his shorts off” in the bedroom with Megan and saw “boogers” on the bed. And
Megan told Gregory that after her mother left their residence, Ramirez separated her
and her brother into different rooms, removed his shorts, had her face down with
her clothes off, “laid on top of her,” and “rubbed his private parts against her butt.”
Further, when Gregory asked Megan about her prior (November 1998) surgery, she
responded, “Dad did it.”

       ¶87    As to Megan’s statements, Halpin’s properly admitted testimony
about what Megan said to her in the ER conveyed the same information regarding
what Ramirez did to Megan both on November 8, 1998, and on September 5, 1999.
Furthermore, Siegel also testified that Megan directly told her in the ER on
September 5, 1999, that Ramirez “had put his pee-pee by her. And she pointed to
her buttock area.” Additionally, Megan’s grandmother testified that while at the
grandmother’s house before going to the hospital on September 5, 1999, Megan told




                                          43
                                                                              No. 2021AP1590-CR




her “that her daddy touched her bottom.”13 And as to Megan’s statements to Larsen
and both her and her brother’s statements to Gregory, the totality of the evidence
presented at trial was so extensive and compelling as to Ramirez’s guilt on the
charges on which he was convicted that we conclude beyond a reasonable doubt,
there is no reasonable possibility the verdicts would have been any different if these
statements had not been admitted at trial.

       ¶88       On September 5, 1999, semen was found on Megan’s vaginal area,
the crotch of her underwear, and the toilet paper found in the bathroom garbage
can.14 DNA testing showed, and there is no dispute, that it was Ramirez’s semen.
Importantly, there was no evidentiary basis for the jury to conclude its presence in
these locations was due to anything other than what Megan told various
individuals—reworded, that Ramirez had taken down Megan’s pants and his own,




       13
           This testimony by the grandmother has not been challenged, and no confrontation
challenge would prevail as this statement by Megan was clearly nontestimonial; nothing indicates
it was made for the primary purpose of prosecuting Ramirez. No police officer was present or
involved in any way, and it was Megan’s mother, not her grandmother, who eventually called the
police. We see nothing suggesting either Megan or the grandmother were contemplating using this
statement for future prosecution of Ramirez.
       14
            Swabs taken from Megan’s rectal area also showed the presence of semen.




                                              44
                                                                                 No. 2021AP1590-CR




laid her face down on a bed, put his penis on her buttocks, and eventually ejaculated
on her.15

        ¶89     As to the November 1998 assault, Megan’s statement to Halpin that
her 1998 injury had not been caused by falling on the bathtub but was caused by
Ramirez “trying to put his pee-pee inside” of her was consistent with both Siegel’s
and Guinn’s testimony that if she had been injured by straddling an object such as a
bathtub, Megan would have had external injuries, but no such injuries were reported
in the relevant hospital records. Moreover, related to her review of Schellpfeffer’s
report detailing Megan’s November 1998 injury, Siegel testified that the injury was
“pretty much diagnostic” for “sexual misuse” and not caused by falling straddle-
style on the side of a bathtub, adding that she had “[n]ever seen an injury of the sort
that was described by Dr. Schellpfeffer that was caused by anything other than
sexual misuse.” (Emphasis added.) Guinn testified very similarly to Siegel, stating
that the November 1998 records indicated Megan had been injured by “an object

        15
            Although Ramirez’s counsel repeatedly questioned Megan’s mother in an attempt to
produce evidence of an alternative manner in which Ramirez’s semen could have gotten onto
Megan, the mother consistently and unambiguously denied planting his semen on her. Despite
Ramirez’s counsel arguing in closing that Megan’s mother—or “somebody”—planted Ramirez’s
semen on Megan’s body, no actual evidence of this was introduced nor was there evidence from
which a reasonable inference of this could be made. And, as the circuit court properly instructed
the jury, it was to “decide the case solely on the evidence” and “remarks” and “arguments” of
counsel are “not evidence.” See Merco Distrib. Corp. v. O&R Engines, Inc., 71 Wis. 2d 792, 795-
96, 239 N.W.2d 97 (1976) (“Arguments or statements made by counsel during argument are not to
be considered or given weight as evidence.”). As the prosecutor stated in his closing argument,
“smear[ing] her husband’s semen on her daughter’s body … would be the only explanation aside
from him raping her that would cause … [Megan] to have the defendant’s semen all over her
buttocks, all over her vaginal area, on her legs, on her underwear, [and] on the [t]issue paper she
used to wipe herself off.” Yet, there was no evidence that the mother did this, only speculative
argument by Ramirez’s counsel. It was as to this key point the Court of Appeals for the Seventh
Circuit went astray in its decision granting Ramirez habeas relief, because it relied in significant
part upon the closing speculative arguments of Ramirez’s defense counsel suggesting Megan’s
mother may have planted Ramirez’s semen on Megan. See Ramirez, 963 F.3d at 610, 618. As
indicated, however, there was no actual evidence of this presented nor evidence from which a
reasonable inference of this could be made, so there was no factual basis by which any reasonable
jury could conclude she planted his semen.



                                                45
                                                                      No. 2021AP1590-CR




that is long enough to penetrate inside the vagina,” consistent with a child stating a
man had “tried to insert his pee-pee inside of her.” Guinn added that Megan’s 1998
injury was inconsistent with falling on the edge of a bathtub because such a fall
“would not cause penetrating trauma such as was described in the medical records.”

       ¶90    While it would have no doubt been difficult for the jury to discern
what, if any, portions of Megan’s mother’s testimony should be believed, the mother
testified that on September 5, 1999, Ramirez did not assault Megan but she had
instructed Megan to say that he had. Significantly, however, we see no testimony
indicating she had instructed Megan on what to say in relation to her November
1998 injury. Halpin testified that she asked Megan “if this was the first time
something like this had happened,” and Megan responded, “No.” Megan’s mother
then asked Megan “if when she went to St. Catherine’s for her vaginal bleeding did
she really hurt herself on the bathtub. And she said: No, she hadn’t,” adding “that
dad … was trying to put his pee-pee inside of her and that’s how she got cut. That
it wasn’t the bathtub.” When Halpin subsequently asked Megan why she had not
previously told this to anyone, Megan told Halpin that Ramirez “had told her that if
she told anybody about this that he would hurt her little brother, her mom or her
grandma.” Importantly, we see no testimony that would have given the jury any
reason to believe the mother gave eight-year-old Megan advanced coaching on what
to say if, by chance, she was asked a more nuanced question like this.

       ¶91    We further note that the mother appeared to slip up a bit with her
recantation at trial. She testified at various points that she made up the September 5,
1999 sexual assault story and coached her children accordingly because she was
angry at Ramirez either because (1) he was drinking heavily while the mother’s
family was visiting; (2) an old girlfriend had called asking for Ramirez and indicated
she was supposed to meet him; (3) Ramirez and Megan’s mother were “supposed

                                          46
                                                                     No. 2021AP1590-CR




to go do something that afternoon”; or (4) a combination of these. However, at one
point when asked by the prosecutor if it was true that “at the time you made this
allegation about a sexual assault it was based … partly upon what you saw when
you entered that residence,” she responded, “No, I guess of what I thought might
have happened, not of what I seen happen because I was not there.” (Emphasis
added.) So, with this she indicated that when she entered the residence, she “thought
[something] might have happened,” something that caused her to call the police and
allege that Ramirez sexually assaulted Megan. But, if Ramirez was passed out when
she left the residence and was still passed out when she returned to it and she then
spent more than an hour watching television, as she also testified, and then decided
to make up the sexual assault accusation and coach the children regarding that, why
would she have “thought” anything “ha[d] happened”? Indeed, this may have been
one of the few parts of the mother’s testimony the jury actually believed—that she
“thought” something of concern “ha[d] happened” based upon what she observed
when she returned to the residence. No doubt the jury agreed the mother was angry
with Ramirez when she called the police to allege a sexual assault by him, but this
anger was because she indeed “thought” he may have assaulted Megan based upon
what she had observed.

       ¶92    We cannot help but also point out that when the police went to search
the residence and arrest Ramirez on September 5, 1999, he was sleeping on the
couch with a large knife in his hand and a wrench between his legs—hardly a
common sleeping manner. If the mother’s recantation story was to be believed, as
far as an inebriated Ramirez might have known, he had just been brought upstairs
and laid on his bed earlier in the day by his cousin. There would have been no
reason whatsoever for him to arm himself. Jurors would have had a hard time
believing Ramirez went to sleep with these weapons just by chance or because he


                                         47
                                                                     No. 2021AP1590-CR




routinely slept that way, which would have had to have been the case if they were
to believe the mother’s trial story that she made up all of the accusations and
coached her children and that Ramirez, as she stated at one point, “didn’t do
anything.”

       ¶93    Accordingly, we conclude beyond a reasonable doubt that there is no
reasonable possibility the verdicts in this case would have been any different if the
challenged testimony of Larsen and Gregory as to Megan’s and her brother’s
statements had not been admitted at trial.

Grant of Immunity to Dr. Schellpfeffer

       ¶94    At a pre-trial hearing, Schellpfeffer testified that because he, as a
physician, was a statutorily mandated reporter of suspected child abuse, he had felt
“[s]ubtly” intimidated by comments the prosecutor in this case made to him on the
date of Ramirez’s preliminary hearing, which comments Schellpfeffer agreed
“subtly implied [he] could be prosecuted” for having failed to report as suspected
abuse the injury sustained by Megan on November 8, 1998.             Following the
prosecutor’s comments, Schellpfeffer retained legal counsel, and the State
ultimately afforded him immunity related to his testimony in this case.

       ¶95    Ramirez and the State agree the circuit court erred in preventing him
from cross-examining Schellpfeffer in relation to the State’s grant of immunity to
him in exchange for his testimony. We assume without deciding that the parties are
correct in this regard. We agree with the State, however, that any error was
harmless.

       ¶96    We are not convinced that attempted impeachment on this basis would
have had any meaningful impact. While it is the State’s burden to show that the


                                         48
                                                                       No. 2021AP1590-CR




jury would have returned the same verdicts even if Ramirez had been permitted to
cross-examine Schellpfeffer related to the prosecutor’s “subtl[e] impli[cation]” he
could be prosecuted and the subsequent grant of immunity, Ramirez does not even
attempt to develop an argument suggesting what impact such an impeachment effort
might have had on the trial. He blames his inability to develop an argument on the
circuit court “prevent[ing]” him at a pre-trial hearing “from delving into how the
threat might have affected” Schellpfeffer. He states “we can’t know” whether
Schellpfeffer’s testimony was “free of bias” and “we cannot know” if Schellpfeffer
might “have testified any differently than he actually did.” Instead of suggesting
the types of questions that might have been asked of Schellpfeffer at trial in hopes
they would bear fruit, Ramirez merely posits that “depriving the jury of this
information meant the jury could not adequately assess Schellpfeffer’s credibility,
or his claims that he’d suspected sexual abuse that he did not report.” Ramirez’s
effort, or lack thereof, on this issue is not particularly persuasive. That said, again,
the State does bear the burden to show any error by the court was harmless. So, to
that point, we consider the following.

       ¶97    Schellpfeffer’s November 8, 1998 hospital report—which was made
years before he was granted immunity by the State—indicates a nurse inquired of
Megan’s mother on that day and Schellpfeffer inquired of the mother the following
day if Megan’s vaginal injury was possibly due to abuse. The notes reflect that both
times the mother denied this possibility. Thus, the notes show that Schellpfeffer
suspected abuse as a possibility long before he received the State’s grant of
immunity.

       ¶98    When she was being treated for the September 5, 1999 assault, Megan
informed Halpin that her previous vaginal injury had not been caused by falling on
the edge of the bathtub but by Ramirez “trying to put his pee-pee inside of her,”

                                          49
                                                                     No. 2021AP1590-CR




statements that were completely consistent with Schellpfeffer’s medical findings
identified in his report and Siegel’s and Guinn’s conclusions from the same.
Relatedly, even if jurors questioned the veracity of Schellpfeffer’s testimony on
incriminating points, it would matter little because Guinn and Seigel both testified
to the same key points related to the November 1998 assault: the injury detailed in
Schellpfeffer’s report, which consisted of internal cuts yet no external injuries,
would almost certainly have been caused by penetrative sexual abuse—not a
straddle fall onto the edge of a bathtub. As Guinn testified, “something had to
penetrate inside,” and as the State wrote in its reply brief on appeal, “once [Megan]
disclosed that Ramirez [had] assaulted her, the bathroom-fall explanation ceased to
be plausible.” And damningly, as already explained, Ramirez’s semen was found
on Megan’s vaginal area ten months after the November 8, 1998 injury, and the only
fact-based explanation for its presence was Megan’s statement to various witnesses
that Ramirez had sexually assaulted her.

       ¶99    We can envision no impeachment that would have had any possibility
of changing the outcome of the trial. Considering the totality of the evidence
presented at trial, we are convinced beyond any reasonable doubt that there is no
possibility any amount of impeachment of Schellpfeffer related to the grant of
immunity would have altered the verdicts. The jury properly found that Ramirez
committed all four of the sexual offenses of which he was convicted.

              By the Court.—Order reversed and cause remanded with directions.




                                           50