State v. Peters

• Decision Date: 17 December 1991
• Docket Number: No. 91-0870-CR,91-0870-CR
• Citation: 479 N.W.2d 198,166 Wis.2d 168
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. David J. PETERS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 198

479 N.W.2d 198

166 Wis.2d 168

STATE of Wisconsin, Plaintiff-Respondent, ^d v. David J. PETERS, Defendant-Appellant.

No. 91-0870-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 16, 1991.

Opinion Released Dec. 17, 1991.

Opinion Filed Dec. 17, 1991.

Robert A. Adman, Appleton, for defendant-appellant.

James E. Doyle, Atty. Gen. and Gregory M. Posner-Weber, Asst. Atty. Gen., for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

David Peters appeals a judgment convicting him of first-degree sexual assault, contrary to sec. 940.225(1)(b), Stats. (1987-88). ¹ First, Peters contends that the trial court erroneously admitted hearsay testimony consisting of prior consistent statements made by the victim to three separate people, and that the erroneous admission of this testimony was prejudicial. Second, Peters argues that his trial counsel was ineffective. Third, Peters argues that the trial court abused its discretion by sentencing him to fifteen years' imprisonment.

We conclude that the trial court erred by admitting the prior consistent statements, and that this error prejudiced Peters. Therefore, we reverse the judgment of conviction and remand for a new trial. Because we reverse on this ground, we do not address Peters' remaining contentions. ²

Peters was charged with first-degree sexual assault for acts he allegedly committed against J.P., a child under the age of twelve. J.P., Peters' niece, was born on June 1, 1975. J.P. testified at trial to various instances of sexual assault by Peters. She testified that Peters baby-sat for her family many times when she was a child and that one night Peters fondled her breasts and vagina, and engaged in vaginal sexual intercourse with her. She testified to another similar incident in the winter, but she could not remember whether it was before or after the first incident to which she testified. J.P. testified that the second incident involved the fondling of her breasts and vagina, vaginal intercourse and fellatio. J.P. indicated that these incidents occurred either when she was in the second or third grade.

Three of J.P.'s classmates also testified on behalf of the state. Over Peters' objection that two of the girls' testimony was hearsay, the two testified that years after the alleged incidents occurred, J.P. discussed with them various instances of sexual assault Peters committed against J.P. K.T. testified that sometime when she was in middle school, J.P. told her "my uncle does things to me ... he touched me." K.B. testified that J.P. told her in the eighth grade that J.P.'s uncle had sexual intercourse with J.P. when she was younger.

The testimony of R.O., J.P.'s third classmate to testify, was not objected to. She stated that in the summer between seventh and eighth grade J.P. told her that J.P.'s uncle "did things to [J.P.]."

In addition, Steven Conradt, the investigating officer, testified that J.P.'s testimony in court was the same as her earlier statement to him. Peters objected to this testimony on the grounds that Conradt had no personal knowledge of the events.

Peters testified on his own behalf. He admitted that he baby-sat for J.P., but denied all allegations of the sexual assaults. The jury convicted Peters of first-degree sexual assault.

Peters contends that the trial court erred by allowing J.P.'s two classmates, K.T. and K.B., to testify to statements J.P. made concerning the sexual assaults committed against her by her uncle, and by allowing Conradt to testify that J.P.'s testimony in court was the same as her previous out-of-court statements to him. The state asserts that Peters did not sufficiently preserve his objection to this testimony for appeal and that these prior consistent statements were properly admissible.

Whether a party objected to the admissibility of evidence in a manner sufficient to preserve the issue for appeal requires the application of sec. 901.03(1)(a), Stats., to an undisputed set of facts. This is a question of law that we review de novo. State v. Maloney, 161 Wis.2d 127, 128, 467 N.W.2d 215, 216 (Ct.App.1991). In order to preserve his right to appeal on a question of admissibility of evidence, a defendant must apprise the trial court of the specific grounds upon which the objection is based. Holmes v. State, 76 Wis.2d 259, 271, 251 N.W.2d 56, 62 (1977). General objections which do not indicate the grounds for inadmissibility will not suffice to preserve the objector's right to appeal. Id. To be sufficiently specific, an objection must reasonably advise the court of the basis for the objection. See id.

Peters objected to K.T.'s and K.B.'s testimony as hearsay. There is no dispute that the testimony of these two witnesses is hearsay and is inadmissible unless it fits into some exception to the hearsay rule. Section 908.02, Stats. We conclude that Peters adequately preserved his right to appeal the admissibility of this hearsay testimony because hearsay is precisely the objection to the testimony sought to be introduced. While the state argues that it is Peters' burden to point out to the court the missing element in an exception to the hearsay rule, it is the proponent's burden to prove that the evidence fits into a specific exception to the hearsay rule. Therefore, it was the state's burden in this case to prove that the proffered evidence was admissible.

After Peters' hearsay objection to the girls' testimony was overruled, Peters objected to Conradt's testimony on the basis that Conradt had no personal knowledge of the sexual assaults suffered by J.P. Although Peters did not use the word "hearsay" to object to Conradt's testimony, we conclude that this objection sufficiently apprised the trial court of the hearsay nature of this testimony. Lack of personal knowledge is but another way of asserting a hearsay objection. A lay person with no personal knowledge only knows things that have been told to him by others. Therefore, such testimony will necessarily have hearsay implications. Thus, because Peters had just objected to similarly offered testimony by other witnesses on hearsay grounds, and because he objected to Conradt's testimony on the basis that Conradt had no personal knowledge of the sexual assaults, his objection to Conradt's testimony was sufficiently specific to reasonably apprise the court that his objection was based on hearsay grounds.

Because we conclude that Peters preserved his right to appeal the admission of K.T.'s, K.B.'s and Conradt's testimony, we address the merits of his objections. While the admissibility of evidence is generally a question addressed to the trial court's discretion, a trial court abuses it discretion if it makes an error of law. State v. Mares, 149 Wis.2d 519, 525, 439 N.W.2d 146, 148 (Ct.App.1989). The application of the hearsay rules embodied in secs. 908.01 and 908.03, Stats., to the undisputed facts before us is a question of law. See Mares, 149 Wis.2d at 525, 439 N.W.2d at 148. ³

The state contends that the testimony falls within an exception to the hearsay rule. First, it argues that the testimony falls within sec. 908.01(4)(a)(2), Stats. Otherwise, the state asserts that it falls within the residual exception found in sec. 908.03(24).

Section 908.01(4)(a)(2), Stats., provides in relevant part:

(4) Statements which are not hearsay. A statement is not hearsay if:

(a) Prior statement by witness. The declarant testifies at the trial ... and the statement is:

....

2. Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....

Therefore, to qualify as an admissible prior consistent statement, not only must the prior statements be consistent with the declarant's testimony at trial, but they must also be offered to rebut an express or implied charge of recent fabrication or improper influence or motive. Mares, 149 Wis.2d at 525-26, 439 N.W.2d at 148. At issue in this case is the requirement that the prior statement rebut an express or implied charge of recent fabrication or improper influence or motive.

Peters argues that there was no charge, implied or express, of recent fabrication or improper influence or motive. The state contends that because Peters' opening statement characterized the issues in the case as revolving around credibility, the opening statement implied that J.P. either recently fabricated the story, was improperly influenced or had some type of improper motive. We disagree with the state's contention.

Peters' opening statement suggested to the jury that his version of the events would be honest and truthful and asked the jury to evaluate the testimony of the parties involved. This does not equate to a charge of recent fabrication or improper influence or motive. Peters merely asked the jury to believe him. We doubt that Peters' mere request to the jury to believe his story is necessarily a charge that J.P. was lying. However, even if it can be so construed, an allegation that a person is lying, standing alone, is not sufficient to render admissible the prior consistent statements. The allegation must be that the fabrication is recent or based upon an improper influence or motive. This requirement exists because the prior consistent statements must predate the alleged recent fabrication or improper influence or...