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3rd-Degree Sexual Assault, § 940.225(3) – Elements; Prior Inconsistent Statement; Sufficiency of Evidence

State v. Dennis J. Thornton, 2009AP3074-CR, District 2, 4/13/11

court of appeals decision (not recommended for publication); for Thornton: Angela C. Kachelski; case activity

Scienter is not an element of § 940.225(3). State v. Lederer, 99 Wis. 2d 430, 433, 299 N.W.2d 457 (Ct. App. 1980) (statute requires proof of victim’s nonconsent – in contradistinction, presumably, of defendant’s knowledge of lack of consent – thus isn’t overbroad; legislature isn’t barred from establishing strict liability offense even where penalty is severe), applied and followed, ¶¶9-10.

Exclusion of “double hearsay” upheld: Witness precluded from testifying that victim’s husband told him that victim said she and Thornton had been kissing the night of the assault (thus, according to the defense, supporting the theory that Thornton’s subsequent act was consensual, not assaultive). The husband denied making the statement, as did the victim. The proffered testimony would have been inconsistent with the husband’s testimony, thus admissible as a prior inconsistent statement. But with regard to the victim, the proffer was hearsay within hearsay, and satisfied no exception, ¶¶11-16.

Thornton’s arguments attacking the victim’s credibility were for the jury to resolve, not the court, ¶¶17-19.

{ 1 comment… add one }
  • Robert Henak April 14, 2011, 8:08 am

    The evidentiary holding doesn’t seem correct based on the actual decision. Since the alleged victim denied making the statement, the second level of “hearsay” likewise was a prior inconsistent statement admissible as non-hearsay under s.908.01(4)(a)2. Presumably according to the husband’s first level hearsay/prior inconsistent statement, he had personal knowledge of his wife’s statement. Also, as we all know, credibility is for the jury, so exclusion of the evidence on the grounds that the trial judge did not belief the witness who would testify about the matter is irrelevant. There is nothing unfairly prejudicial about evidence just because it contradicts the state’s case. Especially where consent is THE issue in the case, excluding the evidence on such flimsy grounds would seem to be a clear violation of the right to present a defense.

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