State v. Tyler J. Yost, 2018AP002251-CR

Defendant Tyler Yost was tried for disorderly conduct based on inmate Jacob Rode's testimony that, in a jail common area on March 13, 2017, Yost said he would "crimp" his probation agent's brake lines and videotape her to identify her car, and later affirmed he was "dead serious."
Rode testified others were nearby and could hear table conversations; he also testified he later asked an inmate named Nick (Philip Holland) whether he should report the threats.
The State’s probation agent testified she took the threat seriously because she had observed Yost's mechanical familiarity with cars and believed he could crimp brake lines.
Yost called Holland as a defense witness. On offer of proof Holland said he did not recall hearing any threatening statements by Yost and denied Rode ever asked him about reporting threats; at trial the court barred Holland from testifying that he never heard the brake-line threat, ruling that assertion was hearsay, but allowed Holland to testify that Rode never privately asked him about reporting.
The jury convicted Yost. On appeal, Yost argued the exclusion of Holland’s testimony as hearsay was erroneous; the court of appeals agreed the exclusion was erroneous but found the error harmless and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Holland's testimony that he never heard Yost threaten the agent is hearsay	State: Holland's testimony improperly disputes Rode's extrajudicial statement and is inadmissible hearsay	Yost: Testimony that a witness did not hear a statement is not an out-of-court assertion and thus not hearsay	Court: Excluding that testimony as hearsay was error; absence of a statement is not a hearsay statement under the statutory definition
If erroneous, whether the error was harmless	State: Rode's specific, credible testimony plus the agent's observations about Yost's mechanical skill make the excluded testimony immaterial	Yost: Exclusion prevented presenting a contradictory witness account that could have affected the jury	Court: Error harmless beyond a reasonable doubt; additional denial testimony would likely not have changed the outcome

Auseth v. Farmers Mut. Auto. Ins. Co., 8 Wis. 2d 627 (1959) (absence of an asserted statement may be shown; hearsay rule applies when offered to prove truth of asserted fact)
Dutton v. Evans, 400 U.S. 74 (1970) (hearsay rule restricts proof of facts via extrajudicial statements but does not bar testimony about what a witness heard)
State v. Curbello-Rodriguez, 119 Wis. 2d 414 (Ct. App. 1984) (hearsay rule does not prevent a witness from testifying as to what he heard)
State v. Davis, 248 Wis. 2d 986 (2001) (erroneous legal rulings can constitute an erroneous exercise of discretion)
State v. Carlson, 261 Wis. 2d 97 (2003) (harmless-error standard: affirm if conviction would be the same beyond a reasonable doubt)