COURT OF APPEALS

DECISION

DATED AND FILED

September 18, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP2251-CR Cir. Ct. No. 2017CM1175

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

TYLER J. YOST,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Waukesha County: MICHAEL P. MAXWELL, Judge. Affirmed. 

¶1 GUNDRUM, J.1 Tyler Yost appeals from a judgment of conviction

and an order denying his postconviction motion. Yost argues the circuit court 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
No. 2018AP2251-CR

2

erred in precluding him from presenting at trial certain testimony from a witness 

on the ground that the testimony was inadmissible hearsay. We agree the court 

erred in concluding that the challenged testimony was hearsay, but because the 

error was harmless, we affirm.

Background

¶2 Yost was charged with and on trial for disorderly conduct. At the 

trial, Jacob Rode testified that on March 13, 2017, while he and Yost were inmates 

of the Waukesha County Jail, they were sitting at a table in a common area talking 

about their respective probation agents. During the conversation, Yost expressed 

that his agent was a “bitch,” and he became “agitated or irritated or angry talking

about it” and “went about saying when he gets out he is going to make sure [his 

probation agent] pays. He’s going to crimp her brake lines and he didn’t care if 

there’s anybody in the car, family members or kids.” Yost further stated that he 

knew how to “crimp her brake lines ... where no one would know it was him. He 

said he was going to videotape her coming to and from the office so he could 

figure out what car was hers.” Later that night, Rode approached Yost to inquire 

if he had just been joking regarding his threats. In response, Yost, while sporting 

“a creepy smile,” “was like, no, I’m serious ... dead serious.” 

¶3 Rode further testified that there were other inmates nearby during 

the initial common-area conversation, and they were almost all “call[ing] their 

agents [derogatory] name[s].” He added that “the tables are close together so I 

mean if I’m talking at one table, people three tables down can hear me.... You 

can easily hear people.” An inmate named “Nick” was also sitting at the table 

with Rode and Yost during the common-area conversation. 
No. 2018AP2251-CR

3

¶4 On cross-examination, Rode agreed that he had previously told a 

deputy that there were several other inmates who heard the common-area 

conversation about the brake lines, and he testified that he had told two probation

agents that

after the conversation happened ... later that night I asked 

Nick what to do because I knew he was going to be in there 

for awhile. I asked him what he would do. He knew 

[Yost] better than I did so he would know if he was joking 

or not. He said if it aggravated me that much I should say 

something so I did. 

¶5 Yost’s probation agent at the time of the alleged common-area 

conversation also testified. She testified that when she learned of Yost’s brakelines threat, she took it seriously. She did so because during her probation visits to 

Yost’s home, she observed that the garage had been set up “to basically strip cars 

down and fix them up,” Yost was usually “working on his vehicle,” and he 

informed her that “he enjoyed fixing cars up for different shows and events that he 

would take these cars to”; thus, she was concerned “that he would know how to 

crimp a brake line.” The State rested after the agent’s testimony.

¶6 Yost signaled his intent to call Philip Holland, “Nick,” as his first 

witness. The State objected, arguing that Holland could not testify to the 

substance of what was said during the common-area conversation because it 

would be inadmissible hearsay. The circuit court initially indicated, “With regard 

to the fact that Mr. Holland is sitting at the table hearing this conversation, I don’t 

see how that’s not admissible to him testifying as to what he heard.” After further 

argument, the court stated: “With regard to Mr. Holland’s testimony, the court is 

going to allow him to testify. I think it is a valid basis of impeachment if he’s 

going to testify,” but cautioned that “the testimony has to stay within the 

parameters of the conversation at the table.” After the State inquired further, the 
No. 2018AP2251-CR

4

court sought an offer of proof, and Holland took the stand, outside the presence of 

the jury. 

¶7 Holland testified that he was “sure” he would have heard “99 

percent” of conversations around a table with a group of inmates in the common 

area, but that he did not recall any conversation in which Yost expressed anger 

toward his probation agent. Contrary to Rode’s testimony, Holland further 

testified that Rode never spoke with him (Holland/“Nick”) about whether Rode 

should report threatening statements made by Yost. When asked: “Do you 

remember testifying [in an earlier revocation hearing related to Yost] that both 

Mr. Yost and Mr. Rode both said negative things about their agent,” Holland 

responded: “I would say that, yes. I did hear negative things said, but I never 

heard anything threatening.” Holland’s trial testimony continued:

[Yost counsel:] When you say threatening, did you ever 

hear Mr. Yost in a conversation between the three of you or 

possibly other individuals where he threatened to crimp the 

brake line of his agent’s car?

[Holland:] No. The only thing I ever heard was basically 

disappointment as far as being treated unfairly by the 

[probation officer].

[Yost counsel:] That was Mr. Yost being treated unfairly? 

Are you referring to Mr. Yost?

[Holland:] I’m referring to both.

[Yost counsel:] So Mr. Yost specifically expressed that he 

was treated unfairly? That’s what he expressed in these 

conversations, is that what you’re telling me?

[Holland:] Yes.

[Yost Counsel:] Do you recall if you ever heard Mr. Yost 

call his agent a bitch or anything to that effect?

[Holland:] I never heard anything like that, no. 
No. 2018AP2251-CR

5

¶8 Changing its earlier position, the circuit court ruled that Holland 

could not testify that he never heard Yost threaten to crimp his agent’s brake lines. 

The court did so on the ground that such testimony was inadmissible hearsay. The 

court also added that it found Holland’s proffered testimony to be “unreliable ... 

because of the vagueness of his recollection.” The court did allow, however, for 

Yost’s counsel to elicit from Holland, in front of the jury, testimony that Rode 

never came to him for advice on or around March 13 as to whether he should 

report a threat made by Yost as to his probation agent or ever spoke with him 

privately at all. On this, Holland testified before the jury as follows:

[Yost counsel:] ... Do you remember whether Mr. Rode 

ever came to you in the jail on or about March 13th and 

requested or asked you if he should report threats made by 

Mr. Yost to his agent?

[Holland:] No.

[Yost counsel:] Do you recall him ever coming to you to 

talk about Mr. Yost at all in a private fashion?

[Holland:] No.

[Yost counsel:] ... Mr. Rode never pulled you aside or 

whispered over while you’re sitting on a table on the 13th 

of March and asked you whether he should report the 

conversation that Mr. Yost had earlier threatening his 

agent?

[Holland:] No. 

On cross-examination, the State elicited acknowledgments from Holland that he 

was “friends” with Yost while they were in the jail together and that Holland was 

“closer” with Yost than with Rode. 

¶9 Following all testimony, the jury found Yost guilty of disorderly 

conduct. Yost now appeals. 
No. 2018AP2251-CR

6

Discussion

¶10 We review a circuit court’s evidentiary decisions for an erroneous 

exercise of discretion. Gaethke v. Pozder, 2017 WI App 38, ¶23, 376 Wis. 2d 

448, 899 N.W.2d 381. Making an evidentiary ruling based upon an error of law is 

one way in which a court can erroneously exercise its discretion. State v. Davis, 

2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62.

¶11 Yost argues the circuit court erred in preventing Holland from 

testifying, on the ground of hearsay, that he never heard Yost make a statement 

threatening his probation agent. We agree. Hearsay is “a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” WIS. STAT. § 908.01(3). 

Holland’s testimony was that he never heard a certain “statement”/“matter 

asserted” (i.e., he never heard Yost talk about crimping his agent’s brake lines). 

The absence of a statement/assertion is not a statement/assertion made to prove the 

“truth of the matter asserted,” and thus, Holland’s testimony that he did not hear 

Yost make a statement threatening his probation agent would not meet the 

statutory definition of hearsay. See § 908.01(3); see also Auseth v. Farmers Mut. 

Auto. Ins. Co., 8 Wis. 2d 627, 630, 99 N.W.2d 700 (1959) (“If the statement is not 

offered to prove the truth of the fact asserted, then the only thing material is 

whether the statement was made. As to that fact, there is no more objection to 

permitting a witness to testify as to what he heard said than as to what he may 

have observed, and he may be cross-examined as to both.”); State v. CurbelloRodriguez, 119 Wis. 2d 414, 427, 351 N.W.2d 758 (Ct. App. 1984) (“The hearsay 

rule does not prevent a witness from testifying as to what he [or she] heard; it is 

rather a restriction on the proof of fact through extrajudicial statements.” (quoting 

Dutton v. Evans, 400 U.S. 74, 88 (1970)).
No. 2018AP2251-CR

7

¶12 While we believe the circuit court erred in not permitting Holland’s 

testimony that he never heard Yost make a threatening statement with regard to his 

agent, we believe the error was harmless. A review of the transcript shows Rode’s 

testimony related to the common-area comments by Yost bears the ring of truth 

with its specificity and with his additional testimony that he disclosed the 

common-area conversation to his agent with great reluctance due to fear of 

potential retribution while in jail. Further, Yost’s agent testified that she had 

observed Yost to have significant familiarity with the mechanics of cars, such that 

he likely would have the technical competence to be able to crimp the brake lines

of her car. No suggestion was raised in testimony or closing argument that the 

agent might not have been truthful about these observations, and no evidence was 

presented to suggest Rode would have been aware of Yost’s apparent competence 

related to brake-lines sabotage from some other source than Yost himself. 

¶13 Furthermore, the circuit court did permit Holland to testify, in direct 

contradiction to Rode’s testimony, that Rode never had a private conversation with 

him regarding whether Rode should report Yost’s common-area comments to any 

authority. Additional testimony by Holland that he also did not hear Yost threaten 

to harm his agent by compromising her brake lines would have added little, 

especially in light of the very vague nature of Holland’s testimony on this point. 

While Rode testified that Holland was at the table during the common-area

conversation in which Yost purportedly threatened to crimp his agent’s brake 

lines, Holland’s proffered testimony was that he was not aware of any such 

conversation ever occurring. Holland’s proffered testimony was indeed vague as 

to any particular conversations and times they might have occurred. Even with 

regard to the specific brake-lines conversation in the common area, Rode testified 

at trial that Yost had called his agent a “bitch” during that particular conversation, 
No. 2018AP2251-CR

8

yet Holland testified during the offer of proof that he never heard “anything like” 

Yost calling his agent a “bitch.” The jury would have significant reason to 

question whether Holland would have heard the particulars of the brake-lines

discussion even if he had been sitting in close proximity to Yost and Rode when it 

took place. Based on the vagueness of Holland’s offer of proof testimony, if the 

same was presented to the jury, it would have been easy for the jury to conclude 

that Yost did indeed engage in the brake-lines discussion with Rode, as Rode 

testified, but that Holland simply did not hear it, if indeed he was actually sitting 

nearby during this particular conversation on this particular day. In short, the 

proffered testimony excluded by the court offered little that had the potential to 

affect the outcome, and we are convinced beyond a reasonable doubt that had the 

court permitted the testimony, it would not have altered the outcome of the trial.

See WIS. STAT. § 805.18(2); State v. Carlson, 2003 WI 40, ¶46, 261 Wis. 2d 97, 

661 N.W.2d 51 (We consider an error to be “harmless” and affirm if a court finds 

beyond a reasonable doubt that a rational jury would have come to the same 

conclusion absent the error.).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.