State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Angel Mercado, Defendant-Appellant.
2018AP2419-CR
Supreme Court of Wisconsin
January 20, 2021
2021 WI 2; 391 Wis. 2d 304, 941 N.W.2d 835
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 391 Wis. 2d 304, 941 N.W.2d 835 PDC No: 2020 WI App 14 - Published. Oral Argument: October 26, 2020. Source of Appeal: Circuit Court Milwaukee County, Judge Jeffrey A. Conen.
JUSTICES: ROGGENSACK, C.J., delivered the majority opinion for a unanimous Court. NOT PARTICIPATING:
ATTORNEYS: For the plaintiff-respondent-petitioner, there were briefs filed by Scott E. Rosenow, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.
For the defendant-appellant, there was a brief filed by Esther Cohen Lee, Milwaukee. There was an oral argument by Esther Cohen Lee.
An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak, Ellen Henak, and Henak Law Office, S.C., Milwaukee.
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
ROGGENSACK, C.J., delivered the majority opinion for a unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶2 We conclude that Mercado forfeited several of his objections to the admissibility of the forensic interviews. Specifically, Mercado forfeited his contentions that: (1) the circuit court erred by not watching the victims’ forensic interviews in their entirety prior to admitting them and (2) the circuit court erred by permitting N.G. to testify prior to the jury watching her forensic interview. Additionally, although Mercado objected to the admissibility of N.G.‘s video-recording under
A. Factual Background
¶3 Mercado was arrested in August of 2016 for sexually assaulting N.G., L.G. and O.G., who were ages four through seven at the time of the assaults. The victims and their mother, C.C., lived with Mercado during that time. C.C. had known Mercado since 2011 and she and her children moved in with him so that she could assist him with his day-to-day activities (e.g., banking, appointments, medication, etc.).
¶4 C.C. learned of the assaults on August 11, 2016, while she was driving with N.G., her youngest daughter. After hearing a song lyric that went “I want to lick you up and down,” N.G. said from the backseat “[t]hat‘s what he does.” C.C. asked N.G. who “he” was; N.G. told her “Viejo.” Viejo is Spanish for “old man” and is a nickname the victims and others used for Mercado.
¶5 When C.C. and N.G. returned home, C.C. asked L.G. if anyone had been touching her. L.G. said yes. She too told her mother that Mercado was the person who touched her. Finally, C.C. waited for O.G., who at the time was out with Mercado, to return home. She asked O.G. “has [Mercado] been touching you?” O.G. said that “[y]es he does” and that the last time it happened was “[t]he day before yesterday.”
¶6 C.C. asked N.G. and L.G. where Mercado had touched them. N.G. responded “down there” and pointed to “[h]er private area.” L.G. said to C.C. that “he‘s been touching them in their private area and licking them.” According to C.C., “private area” or “private part” are terms that the family uses to refer to the vagina area.
¶7 C.C. took all three girls to the hospital that night. The hospital staff did not find any physical evidence of the assaults; however, each victim individually repeated her allegations to the hospital staff. For example, N.G., without being prompted, said “Viejo keeps licking me on my butt. I hate him.” When asked why she was at the hospital, L.G. responded “To see if I‘m ok. Vie[j]o has been touching me everywhere.”
¶8 On August 16, 2016, C.C. took N.G., L.G. and O.G. to the Sojourner Family Peace Center in Milwaukee where they underwent forensic interviews with Officers Patricia Klauser and Danillo Cardenas. Before asking about what happened to them, the officers took the time to ascertain whether N.G., L.G. and O.G. understood the difference between right and wrong or the truth and a lie.
¶9 N.G. and L.G. initially had difficulty articulating that difference. For example, Officer Cardenas asked N.G. “what happens when somebody says something that‘s wrong and an adult finds out about it?” N.G. said she did not know. N.G. also said it would be both wrong and “not wrong” to call a pillow a wall. Conversely, when asked if she thought it was important to tell what is right, N.G. nodded affirmatively.
¶10 Likewise, L.G. initially told Officer Klauser it would be the truth if someone said that Officer Klauser‘s black pants were red. L.G. also said that she did not know if it was important to “tell what really happened.” However, she said it would be “wrong” if someone said that Klauser‘s pants were red when they were black.
¶11 O.G. told Officer Klauser that kids who lie at school get “put . . . in time-out.” She also stated that it would be a lie to say that Officer Klauser‘s black pants were red.
¶12 During N.G.‘s forensic interview, she told Officer Cardenas that “[Viejo] . . . always . . . touch[ed] [them]” and that Mercado licked her and L.G. “on the butt.”
¶13 Officer Klauser interviewed L.G. and O.G. Similar to N.G., L.G. told Officer Klauser that “[Viejo] touched [her] in [her] butt and [her] ‘pee-pee‘, and on [her] two ‘T-T‘s[‘].” She told Officer Klauser that “[Viejo] comes in [her] room . . . and then he walked [her] in the basement-then he pulled [her] pants down.” Officer Klauser showed L.G. a similar body diagram and had L.G. put an ‘X’ wherever Mercado touched her. L.G. drew an ‘X’ on the chest, pubic area and buttocks of the diagram.
¶14 Finally, O.G. told Officer Klauser that Mercado “was touching [her] everywhere. And he did [it to] [her] two little sisters.” Specifically, O.G. said that Mercado was “touching [her] in . . . the private part” and that Mercado‘s hands were “[u]nder [her] clothes.” As with L.G., O.G. told Klauser that the assaults happened in the basement of their home. Officer Klauser also had O.G. put an ‘X’ on the diagram. She drew an ‘X’ on the pubic area of the body diagram.
¶15 The State filed a criminal complaint against Mercado based upon the information obtained during the victims’ forensic interviews. After learning of the criminal complaint against him, Mercado surrendered to law enforcement.
B. Procedural Posture
¶16 The State charged Mercado with two counts of first degree sexual assault of a child, sexual intercourse with a child under 12 years old contrary to
¶17 Before trial began, the State, pursuant to
¶18 The court agreed to watch “the first few minutes of each of the videos” to determine whether N.G. and L.G. understood the difference between the truth and a lie as required by
¶19 After reviewing the “relevant portions” of the video-recordings, the court determined that N.G. had “some acknowledgement of knowing what it means to tell the truth and what it means to not tell the truth.” Similarly, the court determined that “there‘s far more in [L.G.‘s]
¶20 Mercado‘s case continued to trial in January of 2017.5 There, the State introduced the video-recordings of their forensic interviews which were admitted into evidence.6 The State also provided the jury with transcripts of the videos. Mercado did not object to either O.G.‘s or L.G.‘s video recordings. After each video, the State called each victim to the stand to testify.
¶21 L.G. testified consistent with what she told her mother, what she told Nurse Susan Kanack at the hospital and with what she said during her forensic interview. Specifically she testified that “[Mercado] was pulling our pants down, pulling mine down, and then he was doing stuff to our private parts.” She clarified that “stuff” meant licking. When asked why she put Xs on the drawing during her interview L.G. responded, “Because he was doing nasty stuff.” She testified that “he” meant Viejo——Mercado.
¶22 O.G. had a more difficult time on direct examination; she said she was scared. However, she made it clear that she remembered Officer Klauser, made Xs on the drawing, and told Klauser the truth when they talked. On cross-examination O.G. reiterated that she was told to tell the truth and that she talked to Officer Klauser about Mercado.
¶23 Finally, and before the State showed N.G.‘s video recording, the court called N.G. to “get her to speak loudly enough and to respond to everyone‘s questions.” Mercado did not object to the order of testimony, but moved to prevent N.G. from testifying “because she‘s not a competent witness because of the truth and lack-of-truth issue.” The court overruled Mercado‘s motion stating that “[t]here‘s no such thing as competent witnesses anymore . . . it‘s up to the jury.” Thereafter, Mercado agreed to “give it a try and see where it goes.” The court stated that “[i]f there‘s some indicia of understanding of telling the truth, some, then I think that becomes an issue for credibility issues.”
¶24 The court called N.G. to the stand and entered into the following colloquy with her:
THE COURT: . . . do you know the difference between the truth and a lie?
[N.G.]: No.
THE COURT: Do you know what a lie is? A lie is when you say something that‘s not right. Do you understand that?
[N.G.]: (Nods.)
THE COURT: Okay, good. I‘m going to ask you just a few questions, and you just help me out with what you know, okay? If I said that I was wearing a green robe, is that right or not?
[N.G.]: No.
THE COURT: It‘s not right? Why?
[N.G.]: Because it‘s not.
. . .
THE COURT: Is it green?
[N.G.]: No, black.
THE COURT: It‘s black?
[N.G.]: Yeah.
THE COURT: Okay. So that is a lie that this is green, right? Yes or no?
[N.G.]: No.
THE COURT: Is it true that this is green?
[N.G.]: No.
THE COURT: Okay, so then it must be a lie, right? Yes?
[N.G.]: Yes.
¶25 The State asked N.G. several similar questions to ascertain her ability to comprehend the difference between the truth and a lie. This attempt continued when the trial resumed the next morning. The court entered into a colloquy with N.G. that resembled the one it entered into the day before. This time, N.G. answered yes to the court‘s question “[y]ou have to tell us the truth, right?” She also said yes when asked if she promised to tell the truth. On direct examination, she said that she remembered talking to Officer Cardenas and that she had seen him before.
¶26 On cross-examination N.G. answered “no” to most of defense counsel‘s questions regarding whether she remembered Officer Cardenas or told him “serious stuff.” Mercado argued that this obviated any meaningful opportunity for cross-examination. The court disagreed with Mercado noting its concern was that N.G. would not answer any questions on the stand at all. The court stated, “Meaningful opportunity for cross-examination means ask questions and whatever answers there are, those are the answers that everyone‘s stuck with with that particular witness . . . .” The court told Mercado‘s trial counsel that she would have an opportunity for further cross-examination after the video was shown to the jury. The jury then heard testimony from Officer Cardenas and watched N.G.‘s video-recording. Despite being afforded the opportunity, Mercado did not request any further examination of N.G. after the jury saw her video.
¶27 Mercado moved to dismiss the charge related to N.G. “based on the statements on the witness stand and the statements in the video.” The court denied the motion finding that a prima facie case had been made and N.G.‘s statements on the stand came down to credibility. The jury returned a guilty verdict on all counts.
¶28 Mercado subsequently moved to vacate his convictions. Mercado alleged the circuit court made several errors during trial. He alleged that the circuit court erred by (1) not watching the three forensic interviews in their entirety before admitting them into evidence; (2) conflating N.G.‘s ability to testify as a credible witness with the truthfulness requirement of
¶29 Mercado appealed to the court of appeals reprising his postconviction arguments. The court of appeals agreed with Mercado. It held that the circuit court contravened
¶30 The State contended that Mercado forfeited his objections related to O.G. and L.G. because he did not timely object to the admission of either O.G.‘s or L.G.‘s video-recording.7 In a footnote, the court of appeals chose not to apply
¶31 We granted the State‘s petition for review. On review, we determine: (1) whether Mercado forfeited all of his objections relating to O.G. and L.G. and one argument related to N.G. by not raising them at trial, in his postconviction motion or on appeal, and (2) whether N.G.‘s video-recording is admissible under the residual hearsay exception. We also determine the proper interpretation of
II. DISCUSSION
A. Standard of Review
¶32 Whether a party properly preserved an objection for purposes of appeal is a question of law that we review independently. State v. Agnello, 226 Wis. 2d 164, ¶9, 593 N.W.2d 427 (1999). Questions of statutory interpretation are questions of law that we review independently. State v. Wiskerchen, 2019 WI 1, ¶16, 385 Wis. 2d 120, 921 N.W.2d 730.
¶33 Whether N.G.‘s video-recording is admissible as residual hearsay requires us to apply
B. Forfeiture
¶34 We first examine whether Mercado forfeited all of his objections as they relate to O.G. and L.G. and one objection as it relates to N.G. by not objecting at trial, raising an issue in his postconviction motion or raising an issue on appeal. If Mercado did forfeit his objections, the State argues that the court of appeals erred by directly reviewing and reversing the alleged errors to which Mercado did not object. We conclude that, under
¶35 Forfeiture occurs when a party fails to raise an objection.9 State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612. We have espoused important reasons why courts should abide by the forfeiture rule. Those rules include, for example, allowing circuit courts to correct errors in the first instance, providing circuit courts and parties with fair notice of an error and an opportunity to object, and preventing “attorneys from ‘sandbagging’ errors” by not raising them during trial and alleging reversible error upon review. State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.
¶36 In the context of admitting or denying admission of evidence, forfeiture is contemplated by statute.
¶37 In this context, reviewing courts generally are limited to three exceptions to the forfeiture rule. First,
¶38 Upon a review of the record, we cannot identify a single instance during the trial in which Mercado objected to O.G.‘s video-recording; he therefore forfeited his objection in regard to its admissibility. In addition, although he objected to L.G.‘s video-recording during a pretrial hearing, he did not renew his objection in his postconviction motion or during appellate proceedings.13 Finally, even when Mercado objected to the admission of N.G.‘s video-recording under
¶39 However, having reached the above conclusion, we must nevertheless address
C. Wisconsin Stat. §§ 908.08(2) and (5)
¶40 As an out-of-court statement, a child‘s statement during a forensic interview is hearsay if it is offered at trial for the truth of the matter asserted. See
¶41 Video-recordings of a child‘s statements are admissible if the child is available to testify and the child‘s statements fall into one of the provisions of
1. Viewing Wis. Stat. § 908.08 Video-Recordings
¶42 When a party introduces a child‘s statement in a video-recording, the offering party and the court must comply with the procedures set forth in
¶43 Determining how much of a child‘s video-recording that a circuit court is required to review under
Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the plain language is clear, we stop the inquiry. Id., ¶45. “Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. When statutory language is ambiguous, we go beyond the plain language. Id., ¶47. The court of appeals determined that the plain language of
¶44
¶45 The context in which a statutory term appears is important to its meaning. Kalal, 271 Wis. 2d 633, ¶46. The term, “statement,” appears preceding
¶46 Recordings of children‘s testimonies will differ depending on the facts of the case and the attributes of the child. Therefore, the circuit court will need to exercise its discretion in determining how much of each recording it must review under
¶47 Accordingly, we decline to adopt the court of appeals’ bright-line rule that a circuit court must view a
2. Child Witnesses Testimony
¶48 We also determine the appropriate interpretation of
¶49
If the court or hearing examiner admits a recorded statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the statement is shown to the trier of fact. Except as provided in par. (b), if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the statement to the trier of fact for cross-examination.
Whether this statute precludes a circuit court from permitting a child to testify prior to the showing of the child‘s video-recording is a matter of statutory interpretation.
¶50 We conclude that the plain language of
¶51 Here, the court of appeals said that it found support for its conclusion in its opinion in State v. James. See Mercado, 391 Wis. 2d 304, ¶57. We are unpersuaded. In James, the court of appeals was not asked whether a child may testify before his or her video-recording is shown. Rather, the court was tasked with determining whether the circuit court erroneously exercised its discretion when it refused to show a child‘s video-recording before the child testified based on the circuit court‘s concern that if the child subsequently refused to say anything on the stand a Crawford violation would occur thereby requiring the court to declare a mistrial.15 James, 285 Wis. 2d 783, ¶4. The court of appeals reversed the circuit court and held that the statutory procedure of having a child witness available to testify at trial after the video-recording is shown was a nondiscretionary obligation. Id., ¶12. The court of appeals held that the statutory procedure satisfies the Confrontation Clause as long as the child testifies. Id., ¶11.
¶52 We agree with this interpretation of
¶53 To the extent that James has been interpreted as concluding that
D. The Residual Hearsay Exception
¶54 Finally, we address the admissibility of N.G.‘s video-recording under the residual hearsay exception,
¶55
¶56 We have set out five factors that courts look to in determining whether a video-recording of a child‘s statement
First, the attributes of the child making the statement should be examined, including age, ability to communicate verbally, to comprehend the statements or questions of others, to know the difference between truth and falsehood, and any fear of punishment, retribution or other personal interest, such as close familial relationship with the defendant, expressed by the child which might affect the child‘s method of articulation or motivation to tell the truth.
Second, the court should examine the person to whom the statement was made, focusing on the person‘s relationship to the child, whether that relationship might have an impact upon the statement‘s trustworthiness, and any motivation of the recipient of the statement to fabricate or distort its contents.
Third, the court should review the circumstances under which the statement was made, including relation to the time of the alleged assault, the availability of a person in whom the child might confide, and other contextual factors which might enhance or detract from the statement‘s trustworthiness.
Fourth, the content of the statement itself should be examined, particularly noting any sign of deceit or falsity and whether the statement reveals a knowledge of matters not ordinarily attributable to a child of similar age.
Finally, other corroborating evidence, such as physical evidence of assault, statements made to others, and opportunity or motive of the defendant, should be examined for consistency with the assertions made in the statement.
Sorenson, 143 Wis. 2d at 245-46. Courts are to consider the facts of each particular case and “no single factor [should] be dispositive of a statement‘s trustworthiness.” Id. at 246.
¶57 Upon consideration of the Sorenson factors in this case, we conclude that N.G.‘s statement has circumstantial guarantees of trustworthiness such that it is admissible under the residual hearsay exception.
¶58 First, N.G. was four years old at the time of the assaults. As we stated in Sorenson, “a child at such a young age is unlikely to review an incident of sexual assault and calculate the effect of a statement about it.” Id. N.G.‘s age “tend[s] to support the veracity of [her] report of sexual abuse” by Mercado. Id. Additionally, she had a close relationship with Mercado having lived with him and spent time with him outside of the house. See Huntington, 216 Wis. 2d 671, ¶25 (“[T]he defendant and Jeri maintained essentially a father-daughter relationship since she was three years old.“); see also Snider, 266 Wis. 2d 830, ¶18 (noting that the victim “thought of Snider as an uncle“). Finally, despite N.G.‘s difficulty explicitly stating that she understood the difference between the truth and a lie, “[c]onfusion and unresponsiveness under these circumstances may be accorded less weight . . . unless deliberate falsity is otherwise shown.” Sorenson, 143 Wis. 2d at 247. So, although she had trouble articulating the difference between the truth and a lie, there is simply no evidence that N.G. deliberately fabricated her statement. The first Sorenson factor weighs in favor of admitting the video-recording.
¶59 Second, N.G. made her statement to a police officer. Similar to the social worker in Sorenson to whom the victim made her statement, Officer Cardenas had experience conducting these types of forensic interviews and did not appear to utilize
¶60 Third, the circumstances under which N.G. made her statement support its reliability. Again, N.G. made her statement during a one-on-one interview with a police officer at a neutral location. Additionally, although difficult to pinpoint, the timing of the statement in relation to the assaults is at least a neutral factor. The assaults occurred between June and August of 2016. This puts her statement in a range of potentially a few days to one or two months after the assaults.17 As we noted in Sorenson, “Contemporaneity and spontaneity of statements are not as crucial in admitting hearsay statement[s] of young sexual assault victims under the residual exception.” Sorenson, 143 Wis. 2d at 249; see also Huntington, 216 Wis. 2d 671, ¶30 (noting that a two-week period between the assault and the statement did not detract from its trustworthiness). Accordingly, we conclude that the potential several week delay in reporting does not undercut the truthfulness of N.G.‘s statement.
¶61 Fourth, the content of N.G.‘s statement further supports its trustworthiness. As we stated in Sorenson, “A young child is unlikely to fabricate a graphic account of sexual activity because it is beyond the realm of his or her experience.” Sorenson, 143 Wis. 2d at 249. N.G. told Officer Cardenas that Mercado “licked [her] on [her] butt.” She also demonstrated knowledge appropriate for her age, saying for example that her butt is used “to pee” and using the term “butt” for both her buttocks and genitals. Based on the manner in which she described the assaults, the content of her statement appears to be free from adult manipulation. See Snider, 266 Wis. 2d 830, ¶18.
¶62 Fifth, there is circumstantial evidence that corroborates N.G.‘s statement to Officer Cardenas. We note at the outset that there was not physical evidence of the assaults, which is to be expected given the nature of the assaults. Huntington, 216 Wis. 2d 671, ¶32. Rather, we conclude there is corroborating evidence in the consistency of N.G.‘s statements. Specifically, N.G. offered nearly identical statements to her mother and to Nurse Kanack. In both circumstances she was unprompted and offered these statements voluntarily. As noted in the facts of this case, she told her mother about the assault after hearing a song lyric. Nurse Kanack testified that N.G. “blurted . . . out spontaneously” that “Viejo keeps licking me on my butt; I hate him.” Additionally, O.G. and L.G. acknowledged that Mercado assaulted all three of them. We conclude
¶63 In assessing all five Sorenson factors, we conclude that there are sufficient circumstantial guarantees of trustworthiness to permit N.G.‘s statement to be admitted under the residual hearsay exception.18
¶64 The court of appeals concluded otherwise. It determined that factors one and four were fatally missing. Mercado, 391 Wis. 2d 304, ¶49. The court of appeals held the first factor was not met because N.G. did not demonstrate that she understood the difference between the truth and a lie. Id. The court of appeals also held that by not watching the video-recordings in their entireties, the circuit court could not have made a determination that the statements were free from indications of falsity contrary to the requirements of the fourth factor. Id.
¶65 The court of appeals rationale is flawed for at least two reasons. First, the court of appeals combined the requirements of
¶66 As the court of appeals previously explained in Snider:
[T]he plain language of
Wis. Stat. § 908.08(7) permits the admission of a child‘s videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. Section908.08(1) permits the admission of a “videotaped oral statement of a child who is available to testify, as provided in this section.” The remaining subsections of the statute provide two ways for the statement to be admitted “as provided in this section.” The first is by meeting the various requirements set forth in subsections (2) and (3). If these requirements are met, the court “shall admit the videotape statement,”§ 908.08(3) , and it need not consider any other grounds for admitting a statement. Alternatively, a court “may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception [to] the hearsay rule.” Section908.08(7) . This language can only be read to mean that, if a child‘s videotape statement is admissible under one of the hearsay exceptions set forth inWis. Stat. § 908.03 , the requirements listed in the preceding subsections of§ 908.08 are inapplicable.
Snider, 266 Wis. 2d 830, ¶12 (emphasis in original). We agree with Snider‘s conclusion. Section
¶67 The second flaw in the court of appeals’ discussion is that, assuming arguendo that factors one and four were not met here, the court of appeals did not weigh the missing factors against the ones it appeared to conclude were present. Its opinion merely makes the conclusory statement that factors one and four were not met and the circuit court therefore erred in admitting the video-recording as residual hearsay. Mercado, 391 Wis. 2d 304, ¶49. As we explained in Sorenson, no single factor is dispositive. The court of appeals should have considered all five factors and made its decision based on the comparative weights it gave to all of the Sorenson factors. Even if some portions of some of the factors were missing, there was other evidence that overwhelmingly supports admitting the video-recording.19
¶68 For all of the above reasons, we conclude that N.G.‘s video-recording was admissible as residual hearsay and the court of appeals’ statutory interpretation and analysis were incorrect.
IV. CONCLUSION
¶69 We conclude that Mercado forfeited several of his objections to the admissibility of the forensic interviews. Specifically, Mercado forfeited his contentions that: (1) the circuit court erred by not watching the victims’ forensic interviews in their entirety prior to admitting them, and (2) the circuit court erred by permitting N.G. to testify prior to the jury watching her forensic interview. Additionally, although Mercado objected to the admissibility of N.G.‘s video-recording under
By the Court.—The decision of the court of appeals is reversed.