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Circuit court erroneously admitted hearsay at child sexual assault trial, but error was harmless

State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)

At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.

Regarding “other acts” sexual assaults of the 1st and 2nd children, Lee objected to the admission of the criminal complaint, judgment roll, certified medical records and the children’s statements within their medical records. Due to the similarity between the charged assault and the assaults against children 1 through 3, the court of appeals held that the “other acts” evidence was potentially admissible under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). The assaults of children 4 and 5 was a closer call but the circuit court applied the greater latitude rule for child sexual assault cases. State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399.

As for the specific pieces of evidence, the court of appeals approved the reading of a limited part of the complaint from the case regarding children 1 and 2 because Lee had stipulated to the facts that it alleged. Opinion, ¶27.

Regarding the judgment roll from the case involving children 1 and 2, it was 19 pages long and included a lot of hearsay. During deliberations, the jury asked to see it. The trial court said that it wanted the jury to see that Lee’s conviction in that case had been reversed and that he had pled guilty to a lesser crime. The court gave defense counsel a chance to redact the roll, but counsel declined, so the jury saw all of it. Without citing any law, the court of appeals held that because the circuit court “explained its reasoning” and defense counsel did not object, there was no error. Opinion, ¶28.

Regarding the certified  medical records for children 1 and 2, those were generally admissible under §904.03 and Noland v. Mutual of Omaha Ins. Co., 57 Wis. 2d 633, 641-42, 205 N.W.2d 388 (1973). Once they were admitted, portions of them could be read to the jury under State v. Ellington, 2005 WI App 243, ¶13, 288 Wis. 2d 264, 707 N.W.2d 907.

As for children 3, 4 and 5. The State never introduced independent evidence that Lee assaulted them. At trial, it asked Lee if he was aware of their reported allegations. The court of appeals held:

This is textbook hearsay Without actual admissible evidence of the acts alleged, the State’s questions could only be meant to convince the jury that Lee had a propensity to commit such acts. In the context of all of the other evidence against Lee, this tactic can only be described as prejudicial overkill. This improper tactic is exactly what the rules against hearsay were designed to prohibit. Opinion, ¶32.

In the end it did not matter because the court of appeals described in detail all of the other testimony against Lee and found the error harmless. Opinion, ¶¶33-39.


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