Defense Win: COA holds that circuit court wrongly limited defendant’s testimony; holds error is not harmless

State v. Derek J. Jarvi 2023AP2136-CR, 6/12/25, District IV (not recommended for publication); case activity

Despite the State’s efforts to overturn Jarvi’s postconviction win of a new trial, the court of appeals rejects the State’s evidentiary arguments and holds that it failed to prove harmless error in this case.

Jarvi was convicted of second-degree sexual assault of a person under the influence of an intoxicant contrary to § 940.225(2)(cm) following a jury trial. (¶1). The issue presented in his postconviction motion and on appeal is “that the circuit court erred when it prohibited him from testifying at trial to certain statements that A.B. [the alleged victim] purportedly made before, during, and after the alleged assault.” (¶2). Specifically, Jarvi was alleged to have sexually assaulted A.B. during a camping trip involving A.B. and another coworker. (¶5). The other camper, C.D., testified at trial as to what she believed to be a concerning level of intoxication on the part of A.B. (¶15). A.B. also testified to being “blackout drunk” when she had sex with Jarvi. (¶16).

Jarvi testified on his own behalf. His testimony was subject to repeated objections from the State when he tried to explain A.B.’s statements before, during, and after the alleged assault which he claimed led him to have a different understanding of the situation. The circuit court held that any testimony about A.B.’s statements was hearsay and inadmissible on that basis. (¶¶18-28). However, Jarvi’s postconviction motion asserting that these evidentiary rulings were erroneous was ultimately granted by the circuit court. (¶31).

On appeal, the State concedes that the circuit court was mistaken to find that Jarvi’s testimony was inadmissible hearsay. (¶37). COA accepts that concession:

Given the State’s concession, we conclude that the statements are not hearsay either because the statements would not have been offered for the truth of the matter asserted, see WIS. STAT. § 908.01(3), or because they would have fallen within a statutory exception to the hearsay rule, see WIS. STAT. § 908.03(1) (present sense impressions); § 908.03(2) (excited utterances); § 908.03(3) (then existing mental, emotional, or physical conditions). Thus, we conclude that the circuit court erroneously exercised its discretion when it limited Jarvi’s testimony about the statements listed above on hearsay grounds.

(¶37).

Despite that concession, the State argues COA can affirm on another basis–that the testimony was not relevant. (¶38). COA disagrees and holds that these statements “are relevant to whether Jarvi had ‘actual knowledge’ that A.B. was incapable of consenting.” (¶42). While the State is correct that consent was not an issue in this trial, COA rejects the State’s argument relying on the lack of a consent element for two reasons. First, it faults the State for “assum[ing] the truth of an element that the State had to prove beyond a reasonable doubt.” (¶44).

In other words, the statute does not presume that, just because A.B. was intoxicated, she lacked the capacity to consent. Rather, it requires that the State prove that A.B. was “under the influence of an intoxicant to a degree” that “render[ed] her incapable of giving consent.”

(Id.).

Second, even though lack of consent is not an element, the jury instructions make clear that “evidence relating to consent may be relevant to the elements that refer to the victim being incapable of giving consent.” (¶45). This extends even to statements that A.B. made earlier in the day about kissing Jarvi, as “they were at least marginally relevant to the issue of whether Jarvi had actual knowledge that A.B. was incapacitated.” (¶48).

That leaves harmless error. COA finds the error was not harmless for four reasons:

• “First, the erroneously excluded evidence was not about a periphery matter. Instead, it was directly relevant to matters that were the central focus of Jarvi’s defense.” (¶51).
• “Second, we cannot overlook the effect that the circuit court’s erroneous instructions would have had on the jury’s understanding of what it could consider when evaluating the disputed elements of this crime.” (¶52). Here, the jury was instructed to disregard evidence that was, in fact, potentially relevant to its decision.
• “Third, we also cannot overlook the effect that the frequent interruptions and erroneous instructions and directions that occurred in this case may have had on the jury’s assessment of Jarvi’s testimony.” (¶53). “Beyond any effect that the instructions may have had on the content of Jarvi’s testimony, under the circumstances of this case, the repeated interruptions and redirections had the potential to impair his confidence, coherence, and demeanor, which had the potential to influence the jury’s assessment of his credibility.” (Id.).
• Finally, COA is not convinced that the evidence was harmless simply because Jarvi was otherwise permitted to describe A.B.’s conduct and demeanor. (¶54).

Accordingly, COA affirms the circuit court’s decision granting a new trial on this basis. However, it then takes a brief detour to opine on another issue presented by Jarvi, that the circuit court erroneously ruled when it did not permit his expert on intoxication to testify at this trial. (¶55). Although it declines to overrule the court’s decision, COA states that it is necessary to address the issue which the State believes is otherwise the “law of the case.” (Id.). Accordingly, apparently in anticipation of relitigation of the matter on remand, it scrutinizes the circuit court’s reasoning for excluding the evidence, holding that such evidence may have been admissible under the facts of this case. (¶60). Thus, while it leaves the door open to the lower court still utilizing its discretion to omit the expert’s testimony, it seemingly holds that the court needs to come up with a better rationale for doing so on remand. (Id.).