State v. Antonio D. Thomas, Jr.
CourtCourt of Appeals of Wisconsin
Date FiledOctober 20, 2026
Docket2025AP001016-CR
StatusUnpublished
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Full Opinion
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 20, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2025AP1016-CR Cir. Ct. No. 2017CF5807
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ANTONIO D. THOMAS, JR.,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee
County: J.D. WATTS, Judge. Affirmed.
Before Donald, C.J., Colón, P.J., and Geenen, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Antonio D. Thomas, Jr., appeals a judgment
convicting him of two counts of first-degree sexual assault of a child. Thomas
No. 2025AP1016-CR
contends that the trial court erroneously denied two suppression motions prior to
his jury trial. Upon review, we affirm.
BACKGROUND
¶2 On December 20, 2017, the State charged Thomas with two counts
of first-degree sexual assault of a child. The complaint alleged that Thomas
assaulted eleven-year-old Nicole1 twice while living with Nicole and her family.
Thomas, then twenty years old, was friends with Nicole’s older sister and was
temporarily residing with Nicole’s family. A few days after Thomas moved out,
Nicole sent a text message to her mother, stating that Thomas had been “touching”
her. After speaking with Nicole in detail about the assaults, Nicole’s mother took
her to the children’s hospital for medical treatment. Nicole tested positive for two
sexually transmitted diseases, gonorrhea and chlamydia. Nicole also told her
father about the assaults, and stated that she did not tell him earlier because she
was afraid Thomas would hurt her family. Nicole also told her sister that Thomas
had raped her. Additionally, Nicole wrote the following entry in her diary: “OMG
JGR with grown man it hurted bad and my stomach hurt bad why me doe.”2
¶3 Following his arrest, police conducted two Mirandized3 interviews
with Thomas. Thomas told the interviewing officers that he was autistic, had
1
We use a pseudonym for the child victim to protect the family’s privacy. See WIS.
STAT. RULE 809.86(4) (2023-24). All references to the Wisconsin Statutes are to the 2023-24
version.
2
In a statement to police that the trial court later ruled was inadmissible under the
Confrontation Clause, Nicole explained that “JGR” meant “just got raped.” Although the jury did
not hear Nicole’s statement, we include the explanation for ease of reading.
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 2025AP1016-CR
ADHD and OCD, and had not taken medications in years. He confirmed that he
could understand the officers’ questions without his medications. Thomas initially
denied assaulting Nicole, but ultimately confessed to committing two instances of
sexual assault. Thomas denied allegations of oral sex.
¶4 Prior to trial, the trial court ordered a competency evaluation. As
relevant to this appeal, the examiner determined that Thomas understood the basic
concepts of the criminal justice process and the legal system and could act in his
own self-interest. The trial court accepted the examiner’s opinion and found that
Thomas was competent to stand trial.
¶5 Thomas then moved to suppress his confession, arguing that his
waiver of his Miranda rights was not knowing and intelligent. He also argued that
his subsequent confession made to Detective Andrew Holzem was involuntary. In
support of his motion, Thomas provided a report prepared by Dr. Anthony Jurek, a
psychologist who evaluated Thomas and determined that “it is unlikely that
[Thomas] would have been able to make a knowing and intelligent waiver of his
Miranda Right” and that Thomas “may have been more susceptible to
interrogative pressure than the typical defendant in a criminal case.” Both
interviewing detectives, a Milwaukee police officer involved in a former arrest of
Thomas, and Dr. Jurek testified at a hearing on the motion. The trial court
ultimately denied the suppression motion.
¶6 Prior to trial, Nicole died in an unrelated incident. Thomas moved to
exclude statements Nicole made to her mother, father, and sister. He also moved
to exclude the diary entry stating that she had just been raped. Following a
hearing where each family member testified, the trial court denied Thomas’s
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No. 2025AP1016-CR
motion to exclude the evidence. The court found that the evidence fell under
exceptions to the hearsay rule.
¶7 The matter proceeded to trial where the jury ultimately found
Thomas guilty of both charges. The trial court imposed a twenty-five-year
sentence on the first count and a thirty-five-year sentence on the second count,
running concurrently. This appeal follows.
DISCUSSION
¶8 On appeal Thomas contends that the trial court erroneously denied
both suppression motions. Specifically, he argues that his confession to Detective
Holzem should have been suppressed because he did not knowingly and
intelligently waive his Miranda rights and because his confession was
involuntary. He also contends that Nicole’s statements to her family members and
her diary entry should have been excluded as inadmissible hearsay.
¶9 Our review of a trial court’s denial of a motion to suppress presents a
mixed question of fact and law. State v. Casarez, 2008 WI App 166, ¶9, 314
Wis. 2d 661, 762 N.W.2d 385. We uphold the trial court’s findings of historical
fact unless they are clearly erroneous, but the application of the law to those facts
is a question of law that we review independently. Id.
¶10 When the State seeks to admit evidence of an accused’s custodial
statements, it must show that the accused was adequately informed of his or her
Miranda rights and knowingly, intelligently, and voluntarily waived those rights.
State v. Santiago, 206 Wis. 2d 3, 18, 556 N.W.2d 687 (1996). The State
establishes a prima facie showing of a valid Miranda waiver by demonstrating
that: (1) law enforcement informed a defendant of all the rights and admonitions
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No. 2025AP1016-CR
required by Miranda; and (2) the defendant indicated that he or she understood
those rights and was willing to make a statement. State v. Lee, 175 Wis. 2d 348,
360, 499 N.W.2d 250 (Ct. App. 1993). Once the State has made this prima facie
showing, a court may conclude that a defendant’s waiver was invalid only if the
defendant presents “countervailing evidence” showing that the defendant did not,
in fact, knowingly, intelligently, and voluntarily waive his or her Miranda rights.
See Lee, 175 Wis. 2d at 360-61.
¶11 We conclude the State made a prima facie showing that Thomas
validly waived his Miranda rights and that Thomas failed to present
countervailing evidence to rebut that showing. The record establishes that the
interviewing detectives read Thomas his Miranda rights, that Thomas was able to
keep up with their questions, that Thomas adjusted his answers as the detectives
presented him with additional facts, that Thomas continuously denied allegations
of oral sex, and that Thomas remarked he would go to jail after ultimately
confessing. A defendant’s coherent responses to law enforcement’s explanation of
his or her Miranda rights supports a conclusion that his or her waiver of those
rights was valid. State v. Beaver, 181 Wis. 2d 959, 967, 512 N.W.2d 254 (Ct.
App. 1994).
¶12 Thomas relies on Dr. Jurek’s assessment regarding his cognitive
capacity to rebut the showing that he validly waived his Miranda rights. This
reliance ignores precedent directing us to consider the totality of the circumstances
when determining the validity of a Miranda waiver. See State v. Hambly, 2008
WI 10, ¶91, 307 Wis. 2d 98, 745 N.W.2d 48. That standard applies even when a
defendant “casts [herself or] himself as limited in intelligence and
sophistication[.]” Id., ¶94. In addition to the circumstances described above, the
record also establishes that following a previous arrest, Thomas declined to speak
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No. 2025AP1016-CR
with the police, demonstrating that he understood his right to remain silent. A
defendant’s prior experience with law enforcement—and familiarity with Miranda
warnings—is a proper factor for a court to consider when determining whether a
valid Miranda waiver occurred. See State v. Hampton, 2010 WI App 169, ¶33,
330 Wis. 2d 531, 793 N.W.2d 901.
¶13 Thomas also contends that his confession to Detective Holzem was
involuntary. When a defendant challenges the voluntariness of the statements he
or she made to law enforcement, the State bears the burden of showing by a
preponderance of the evidence that the statements were voluntary. See State v.
Moore, 2015 WI 54, ¶55, 363 Wis. 2d 376, 864 N.W.2d 827. We evaluate
voluntariness in light of all the circumstances surrounding the interrogation and
balance the defendant’s personal characteristics against the actions of law
enforcement. See id., ¶56. Because a defendant’s personal characteristics alone
cannot form the basis for finding that his or her statements were made
involuntarily, however, we “cannot properly label a statement involuntary unless
there is ‘some affirmative evidence of improper police practices deliberately used
to procure a confession.’” State v. Dobbs, 2020 WI 64, ¶72, 392 Wis. 2d 505, 945
N.W.2d 609 (citation omitted).
¶14 Thomas contends that Detective Holzem engaged in two coercive
tactics which led to his confession: (1) Detective Holzem told Thomas that
Nicole’s forensic interview was equivalent to a lie detector test; and (2) Detective
Holzem told Thomas that he was charged with forcing Nicole to have sex and that
it would be a “different story” if Nicole had initiated the sexual contact.
¶15 In determining whether Thomas’s statements were voluntary, we
consider the totality of the circumstances. State v. Hoppe, 2003 WI 43, ¶38, 261
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No. 2025AP1016-CR
Wis. 2d 294, 661 N.W.2d 407. This test requires balancing the personal
characteristics of the defendant against the pressures and tactics employed by law
enforcement officers to induce the statement, which include:
the length of the questioning, any delay in arraignment, the
general conditions under which the statements took place,
any excessive physical or psychological pressure brought to
bear on the defendant, any inducements, threats, methods
or strategies used by the police to compel a response, and
whether the defendant was informed of the right to counsel
and right against self-incrimination.
Id., ¶39.
¶16 We conclude that the totality of the circumstances demonstrates that
Thomas’s confession was voluntary. At the time of the interview, Thomas was
twenty years old and had completed most of his high school education before
dropping out. He also had interacted with the police on prior occasions and had
declined to speak with the police during a prior arrest. Thomas confirmed that he
was not impaired and could understand the line of questioning. Detective Holzem
also testified that Thomas seemed to understand his rights and the questions.
Thomas had been interviewed for less than two hours, divided into two separate
interviews. Thomas was not handcuffed during either interview, and he was
interviewed by one officer at a time. Thomas again relies on Dr. Jurek’s report to
support his contention, but that reliance again ignores the totality of the
circumstances. Even if Detective Holzem’s conduct could be considered coercive
or improper, under the totality of the circumstances, we agree that Detective
Holzem’s conduct was not so fundamentally coercive as to overpower Thomas’s
will.
¶17 Thomas next contends that the trial court erred in admitting Nicole’s
statements to her family and her diary entry stating that she had been raped.
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No. 2025AP1016-CR
Thomas contends that the evidence constituted inadmissible hearsay and did not
fall under the residual or present sense impression hearsay exceptions.
¶18 Under WIS. STAT. § 908.045(6), “[a] statement not specifically
covered by any of the foregoing exceptions but having comparable circumstantial
guarantees of trustworthiness” is not excluded by the hearsay rule. Though often
called the “residual” hearsay exception, it “is not a ‘catch-all’ or ‘near miss’
category that permits the admissibility of otherwise unacceptable hearsay.” State
v. Stevens, 171 Wis. 2d 106, 120, 490 N.W.2d 753 (Ct. App. 1992). The
exception exists “for the novel or unanticipated category of hearsay that does not
fall under one of the named categories, but which is as reliable as one of those
categories.” Id. Accordingly, “[i]t is intended that the residual hearsay exception
rule will be used very rarely, and only in exceptional circumstances.” Id. The
present sense impression exception excludes from the hearsay rule statements
“describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.” WIS. STAT.
§ 908.03(1).
¶19 We review the trial court’s decision to admit or exclude evidence for
an erroneous exercise of discretion. State v. Sullivan, 216 Wis. 2d 768, 780, 576
N.W.2d 30 (1998). We will uphold the court’s decision if it examines the relevant
facts, applies the correct legal standard, and reaches a rational conclusion. Id. at
780-81.
¶20 Here, the trial court found that Nicole’s statements to her parents and
her sister fell under the residual hearsay exception. The court noted that Nicole
confided in her family after Thomas left her home—once she felt the threat was
removed—that she confided in her family first, and that there was no indication of
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No. 2025AP1016-CR
falsity or deceit in her statements. The court also noted, based on testimony from
her family members, that Nicole’s personality changed following the assaults and
that her behaviors were reflective of a young assault victim. The court also noted
that Nicole’s statements were not testimonial, as they were not made in
anticipation of litigation. We conclude that the trial court examined the relevant
facts, applied the correct legal standard, and reached a rational conclusion.
¶21 As to the Nicole’s diary entry, the trial court determined that the
entry was admissible as a present sense impression. We agree. The court noted
that the statement was sufficiently trustworthy, as it was not was made in
anticipation of litigation, was consistent with the statements Nicole made to her
family, and appeared to be written shortly after one of the assaults occurred.
Accordingly, we conclude that the trial court did not erroneously exercise its
discretion in admitting Nicole’s diary entry into the evidence at trial.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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