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New trial ordered in sex assault

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Kevin Murphy
November 10, 2011
— A state appeals court Wednesday ordered a new trial for a man convicted of sexually assaulting a woman at a UW-Whitewater fraternity house in 2004.

The District 3 Court of Appeals concluded that Walworth County Judge Robert Kennedy denied Anthony L. Prineas a fair trial by wrongly excluding some of his testimony about what the woman said before, during and after the April 2004 sexual encounter.


Jurors convicted Prineas, 29, on two of the six sexual assault charges, and Kennedy in February 2005 sentenced him to 10 years in prison.


Kennedy struck Prineas' remarks as inadmissible hearsay, but Prineas' appeals attorney, Robert Hanek of Milwaukee, argued that the statements showed the woman's consent to the sexual activity.


The woman testified that the sex with Prineas was coerced. She said she was in the frat house basement to call her mother because the party noise upstairs was too loud. While in the basement, she encountered Prineas.


She hadn't met him before but went with him to see the chapter room. Inside, Prineas turned out the lights, making the room "pitch black," the woman testified. Prineas told her to undress. When the woman asked if Prineas was joking he said, "No, bitch, I'm not kidding. Take your clothes off," the woman testified.


Prineas grabbed her and started to undress her. The woman struggled and said she wanted to leave, but Prineas told her to "shut up." When she realized he wouldn't stop, she asked him to "please, at least wear a condom," the woman testified.


The woman described six sex acts that constituted the six charges against Prineas.


Prineas testified that in the chapter room the woman asked him if he had protection. Prineas testified he told her that he did, and she said OK.


Kennedy struck the testimony and told jurors to disregard it.


Kennedy also struck details of Prineas' testimony about the sexual encounter that indicated the woman's cooperation and Prineas' use of the word "consensually."


On appeal, Hanek contended that because consent was the central issue at trial, Prineas' statements reflecting the woman's consent were not hearsay because they were offered as part of the incident and not for their truth. Even if the statements were offered for their truth, they would be admissible because they showed the woman's state of mind, Hanek claimed.


The appeals court ruled that jurors should hear Prineas' recollection of what the woman said.


The state argued on appeal that including Prineas' testimony about the woman's remarks wouldn't have altered the trial's outcome. The appeals court disagreed, stating that if the jury found Prineas' testimony credible, it could factor in the verdict given the lack of physical evidence or other witnesses.


Hanek said he was pleased that the appeals court "got it right" and doubted that the state would further appeal the case because the hearsay issue is "well established law."


The state has 30 days to file a request with the Wisconsin Supreme Court to review the case, but Dana Brucek, spokesperson for Attorney General J.B Van Hollen, said that decision was pending Wednesday.



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