Evidence — hearsay

Wisconsin Court of Appeals

Criminal

Evidence — hearsay

In a trial for sexual assault, where the issue was consent, it was error to prohibit the defendant from testifying about what the complainant said during the encounter.

“Anthony L. Prineas appeals from a trial court order and a supplemental order denying his motion for postconviction relief. Prineas was convicted of two counts of sexual assault following a jury trial. The primary dispute at trial was whether the sexual contact between Prineas and the complainant, KAC, was consensual. Although KAC testified that she repeatedly told Prineas ‘no’ and that she wanted to leave, the court excluded on hearsay grounds Prineas’ testimony of what KAC said during the encounter. We conclude the evidence was erroneously excluded. The evidence of KAC’s alleged remarks to Prineas made during the sexual contact was not hearsay because, pursuant to WIS. STAT. § 908.01(4)(a) (2009-10),1 KAC was the declarant, testified at trial, and was subject to cross-examination concerning the statements. Even if KAC’s statements were hearsay, they were admissible under the ‘state of mind’ exception to the hearsay rule, pursuant to WIS. STAT. § 908.03(3). The exclusion of such evidence was error and denied Prineas due process and his constitutional right to present a defense. Prineas is entitled to a new trial.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP2154 State v. Prineas

Dist. II, Walworth County, Kennedy, J., Neubauer, J.

Attorneys: For Appellant: Henak, Robert R., Milwaukee; For Respondent: Koss, Phillip A., Elkhorn; Freimuth, James M., Madison