COURT OF APPEALS

DECISION

DATED AND FILED

June 29, 2021

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. 2020AP1228-CR Cir. Ct. No. 2018CM1193

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SALAR ZANGANA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for 

Milwaukee County: DAVID A. FEISS, Judge. Affirmed. 

¶1 DUGAN, J.1 Salar Zangana appeals from a judgment of conviction 

for misdemeanor battery and disorderly conduct and from orders of the trial court 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1228-CR

2

denying his motion for postconviction relief and his motion for reconsideration. 

Zangana argues that he is entitled to a new trial because the trial court violated 

Zangana’s right to present a defense when it erroneously excluded a text message 

in which one of the victims allegedly apologizes for falsely accusing Zangana of 

domestic abuse. For the reasons set forth below, this court affirms.

BACKGROUND

¶2 On May 1, 2018, Zangana was charged with two counts of 

misdemeanor battery and one count of disorderly conduct, all as acts of domestic 

abuse based on allegations in the complaint that Zangana attacked his wife, Gina, 

and his daughter, Renee.

2

 The case proceeded to a jury trial in March 2019. The 

jury found Zangana guilty of one count of misdemeanor battery and disorderly 

conduct. The jury did not reach a unanimous verdict on the remaining count of 

misdemeanor battery, which resulted in a mistrial on that count. 

¶3 During the trial, witnesses testified that Zangana pounded on the side

door to the family home, Gina opened the door and let Zangana into the kitchen, 

and Zangana proceeded to threaten to “kill all of you and put you all on the 

street.”3 Zangana then grabbed Gina by her hair, choked her, and punched her in 

the face. When Renee tried to intervene, Zangana grabbed her and began to punch 

her in the face. Renee ran away, and Zangana tackled her in the living room, 

where he continued to punch and kick her. Gina pulled Zangana off Renee, and 

 

2

 This court uses pseudonyms to protect the identity of the victims pursuant to WIS.

STAT. RULES 809.19(1)(g), 809.86(4).

3

 At the time of the incident, Zangana and Gina were separated and undergoing a 

divorce. Zangana no longer lived at the family home, and Gina was living there with Renee, 

Renee’s other siblings, and Renee’s husband. 
No. 2020AP1228-CR

3

Renee ran outside and called 911. When the police arrived at the house, Gina and 

Renee were outside on the front lawn and told the police that Zangana was inside 

and that he had attacked them. The police went inside to investigate, while Gina

and Renee remained outside. The police found Zangana sitting on the couch in the 

living room, took him into custody, and put him in a squad car. The police then 

took statements from Gina and Renee, took pictures of their injuries, and took 

pictures of the kitchen and living room where Gina and Renee said Zangana 

attacked them.

¶4 Gina, Renee, and investigating officers testified during the trial, and 

the jury was shown the pictures taken by the police from the day of the incident.

4

 

During Renee’s testimony, trial counsel attempted to cross-examine Renee about a 

text message sent to Zangana in February 2019. The text message, while sent 

from the phone of Renee’s husband, purports to be from Renee, allegedly 

apologizes to Zangana “for things I did against you,” and seeks Zangana’s 

forgiveness, while she was in the hospital about to have a baby.

5

 Trial counsel 

questioned Renee:

 

4

 Gina’s testimony was taken with the use of an interpreter because Gina’s primary 

language is Kurdish. 

5

 The text message at issue in this appeal is also in Kurdish. It was marked as exhibit 12 

during the trial, but it was never admitted into evidence and is not part of the record. Nothing in 

the record reflects that it was ever translated into English during the trial. However, in support of 

his postconviction motion, Zangana submitted an affidavit in which he avers that he attached a 

copy of the text message to that affidavit and averred that:

My own translation of that message into English is: “Hi Daddy, 

I am [Renee]. Either tonight or tomorrow I will have a baby. I 

am sorry and ask your forgiveness for those things I did against 

you. I am very regretful. I know I was wrong. Please forgive 

me and free my conscience just in case (in case something goes 

wrong during childbirth).”
No. 2020AP1228-CR

4

Q A text message - - were you aware that a text 

message right immediately about the time of you giving 

birth was sent from your husband’s cell phone to 

Mr. Zangana’s cell phone?

A I was aware after I was released from the hospital.

.... 

Q How did you become aware of that?

A My husband told me after I was released. I’m sorry. 

I didn’t understand your question.

Q That’s fine. Your husband said, “By the way, I sent 

that message,” correct?

A Correct. 

Q You and he talked about sending that message 

beforehand, correct?

A No, he did not tell me beforehand.

Q Did he have any - - you’ve seen the message or you 

know what the content of that message is, correct?

A I didn’t see the message. I was unconscious in the 

hospital when he sent the message. 

....

Q Okay. [Renee], your testimony is that you are not 

the person who sent this text message, correct?

A Correct. 

¶5 The State objected to trial counsel’s line of questioning associated 

with this text message on the grounds that the text message was hearsay. The trial 

court sustained the objection and added that the marital privilege also protected 

any communications that Renee and her husband may have had about the text 
No. 2020AP1228-CR

5

message. Thus, the text message and the related line of questioning was excluded 

from the trial.6

¶6 Following his conviction, Zangana filed a postconviction motion,

arguing that the trial court violated his right to present a defense when it excluded 

the text message and related line of questioning. Specifically, Zangana argued 

that, had he been able to continue his line of questioning, the text message would 

have been admissible as a prior inconsistent statement or as extrinsic evidence of a 

prior inconsistent statement. Zangana additionally argued that any 

communications between Renee and her husband related to the text message were 

not covered by the marital privilege because Renee intended for the result of any 

such communication to be disclosed to her father. Thus, Zangana argues that he 

should have been able to question Renee regarding the discussions she had with 

her husband about the text message and should have been able to use the text 

message to impeach Renee, either by bringing out the contents of the text message 

through Renee or by calling her husband to testify about the text message. 

¶7 The trial court denied Zangana’s motion, saying “the court stands by 

its rulings that (1) the text message was hearsay and (2) the defendant’s questions 

about discussions leading to the text message fell within the auspice of marital 

privilege.” The trial court also found that Zangana forfeited his ability to 

challenge the admissibility of the text message as extrinsic evidence and failed to 

 

6

 In addition to seeking to bring in the text message through Renee’s testimony, trial 

counsel sought to call Renee’s husband as a witness and have her husband testify regarding their 

conversations about the text message and then admit the text message itself as extrinsic evidence 

of a prior inconsistent statement through the husband’s testimony. The trial court denied trial 

counsel’s request for a continuance in order to subpoena Renee’s husband, stating that if the issue 

had been presented, any testimony from Renee’s husband was also protected by the marital 

privilege. 
No. 2020AP1228-CR

6

develop, and properly preserve, his ability to challenge the exclusion of the text 

message and the trial court’s denial of his ability to subpoena Renee’s husband as 

a violation of his right to confront the witnesses against him and present a defense. 

Zangana subsequently filed a motion for reconsideration, which the trial court also 

denied, and this appeal followed. 

DISCUSSION

I. Admission of the Text Message 

¶8 Zangana renews his arguments that the text message purportedly 

from Renee, in which Zangana asserts that she apologizes for falsely accusing her 

father of attacking her and Gina, should have been admitted either as a prior 

inconsistent statement during Renee’s testimony or as extrinsic evidence as a prior 

inconsistent statement through testimony from Renee’s husband. Zangana’s 

arguments fail. The text message itself is hearsay because the “declarant” of the 

text message is Renee’s husband, and Renee’s husband did not testify and was not 

subject to cross-examination. Moreover, any communications that Renee may 

have had with her husband that could be used to explain the text message or 

attribute it to Renee as her statement are protected by the marital privilege.

¶9 The circuit court has “broad discretion to admit or exclude 

evidence,” and we review the circuit court’s decision to admit evidence for an 

erroneous exercise of discretion. State v. Nelis, 2007 WI 58, ¶26, 300 Wis. 2d 

415, 733 N.W.2d 619 (citation omitted).

¶10 For a hearsay statement to be admissible as a prior inconsistent 

statement, the “declarant” must “testif[y] at trial ... and [be] subject to crossexamination concerning the statement.” WIS. STAT. § 908.01(4)1.; see also WIS.
No. 2020AP1228-CR

7

STAT. § 906.13(2)(a). Consequently, the text message’s declarant had to be called 

to testify at trial and be subject to cross-examination. See Nelis, 300 Wis. 2d 415, 

¶¶32-33. Based on the text having come from the phone of Renee’s husband and 

Renee’s testimony that she did not send the text message, Renee’s husband, and 

not Renee, is the declarant. However, Renee’s husband was never called to 

testify, and for this reason alone, the text message cannot qualify as a prior 

inconsistent statement or as extrinsic evidence of a prior inconsistent statement. 

Additionally, trial counsel originally sought to introduce the text message through 

Renee’s testimony. Having established that Renee’s husband is the declarant, trial 

counsel could not use the text message as a prior inconsistent statement from

Renee because it was not her statement. Thus, the trial court properly exercised its 

discretion to exclude the text message as hearsay.

7

¶11 Zangana further argues that the text message is in fact Renee’s 

statement of apology and should be attributed to her as a prior inconsistent 

statement. In support, Zangana cites People v. Jones, 306 P.3d 1136 (Ca. 2013). 

Even putting aside that Jones is not binding precedent on this court, Zangana 

overlooks that the alleged apology in Jones was assumed to be an apology by the 

court for the purposes of the discussion. Id. at 1174. The court ultimately 

concluded that there was no way to attribute the alleged apology to the victim 

 

7

 Additionally, it is debatable whether the text message even qualifies as inconsistent 

with any of the testimony given at trial. As the State argues, the text message is broad and vague, 

asking simply for forgiveness “for those things I did against you.” This court agrees that it is 

unclear what the text message refers to, and there is no apparent connection to Renee’s trial 

testimony or any indication that the text message seeks forgiveness for any false accusations 

about Zangana attacking Renee and Gina. In fact, shortly after the text was sent, Renee appeared 

for the jury trial and testified, consistent with her statements to the police, that Zangana attacked 

her and Gina. See Nelis, 300 Wis. 2d 415, ¶¶32-33 (noting inconsistency between testimony 

from a witness who could not remember details of an assault with an earlier statement made to 

police in which the witness described details of the assault).
No. 2020AP1228-CR

8

because the apology was apparently conveyed by way of members of the victim’s 

church, and there was no evidence that they acted as agents of the victim and with 

the victim’s authority to convey such an apology. Id. at 1174-76. The text 

message here is not readily identifiable as an apology for falsely accusing Zangana 

of the attack, and there is no evidence that Renee’s husband acted as her agent and 

with any authority to convey any such apology because Renee testified that she 

had not seen the message before it was sent and did not know of the message until 

after the fact. Moreover, as noted, Renee’s testimony at the trial, which was

shortly after the text was sent, that Zangana attacked her and Gina refutes 

Zagana’s assertion that Renee was apologizing to him for falsely accusing him of 

attacking her and Gina. Consequently, Jones is inapposite.

¶12 Further, the content of any communications between Renee and her 

husband related to the text message, or any supposed regret over falsely accusing 

Zangana, are also protected by the marital privilege found in WIS. STAT. § 905.05. 

Thus, the trial court did not erroneously exercise its discretion when it found that 

trial counsel could not continue the line of questioning with Renee about her 

conversations with her husband about the text message, have the text message 

admitted into evidence as prior inconsistent statement of Renee, or call the 

husband to testify about the text message as an alleged apology from Renee.

¶13 The marital privilege “protects communications between spouses 

that are private.” Kain v. State, 48 Wis. 2d 212, 216, 179 N.W.2d 777 (1970). 

However, “[a] communication between spouses is not ‘private’ where a third party 

has access to the same information.” Id. 

¶14 Zangana argues that Renee’s communications with her husband are 

not protected by the marital privilege because the communication is not private as 
No. 2020AP1228-CR

9

a result of the communication being shared with her father. Zangana misses the 

point. The text message does not change the fact that any communication between 

Renee and her husband, assuming a communication took place, is still private

because there is no record that Renee had any intention of communicating that text 

to her father. As Renee testified, she did not see the contents of the text message 

before it was sent and did not know that her husband sent the text message. 

Indeed, as Renee testified, she was unconscious in the hospital at the time the text 

was sent. Thus, any assumed communications remain private and, therefore, 

protected by the privilege.

¶15 Zangana cites Wolfle v. United States, 291 U.S. 7, 14 (1934), 

saying, “[W]herever a communication, because of its nature or the circumstances 

under which it was made, was obviously not intended to be confidential, it is not a 

privileged communication.” That is not the case here where there is no record that 

Renee intended the text be communicated to her father and the limited testimony 

in the record in fact indicates the opposite to be true. Consequently, Zangana’s 

argument fails.

II. Constitutional Violations

¶16 In his postconviction motion and on appeal, Zangana takes his 

argument that the trial court erroneously excluded the text message a step further 

and argues that the trial court’s ruling violated his right to present a defense and 

his right to confrontation. This court agrees with the trial court that Zangana’s 

argument on this topic is not only undeveloped, but not properly preserved for 

appeal. This court thus declines to address his argument any further. See State v. 

Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (1992) (declining to address 

undeveloped arguments); see also State v. Huebner, 2000 WI 59, ¶10, 235 
No. 2020AP1228-CR

10

Wis. 2d 486, 611 N.W.2d 727 (“Issues that are not preserved at the circuit court, 

even alleged constitutional errors, generally will not be considered on appeal.”).

CONCLUSION

¶17 In sum, the trial court properly excluded the text message as hearsay 

and prohibited trial counsel from questioning Renee about any conversations she 

had with her husband about the text message as those communications were 

protected by the marital privilege. Accordingly, this court affirms the judgment 

and orders of the trial court. 

By the Court.—Judgment and orders affirmed.

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

809.23(1)(b)4.