¶1(dissenting). I dissent. The victim testified that the defendant sexually assaulted her sometime between 7:00 and 8:00 a.m. The defendant testified that he had consensual intercourse with the victim sometime between 6:15 and 6:50 a.m. The undisputed evidence indicated that two types of semen were found in the victim’s blue jeans, one consistent with the defendant’s type and one not. The defendant’s attorney made an offer of proof that the defendant would testify that he was in Zion, Illinois, sometime between 7:00 and 7:30 a.m., and that he stayed there for an hour. The trial court refused to allow the defendant to so testify.
¶2The majority opinion emphasizes the fact that “there is not a sufficient discrepancy in time” between the victim’s testimony as to when she claimed the defendant sexually assaulted her and the defendant’s testimony as to when he claimed to have consensual intercourse. That is correct, but it is not controlling. Had the defendant been allowed to testify as to where he was when the victim claimed to have been assaulted, he would have testified that he was someplace else. That is ah alibi. This court has made it plain that evidence of alibi includes “. . . any testimony placing the defendant somewhere else at the time of the crime.” State ex rel. Simos v. Burke, 41 Wis. 2d 129, 134, 163 N.W.2d 177 (1968).
¶3Because the trial court refused to allow the defendant to testify as to where he was at the time the victim *312claimed the offense occurred, and because that testimony would constitute an alibi, this case is squarely within the holding of Alicea v. Gagnon, 675 F.2d 913 (7th Cir 1982).
¶4In Alicea, the court held: “. . . a criminal defendant has a constitutional right to testify in his own behalf under the fifth, sixth and fourteenth amendments.” 675 F.2d at 923. In addition, in State v. Albright, 96 Wis. 2d 122, 129, 291 N.W.2d 487, cert. denied, 449 U.S. 957 (1980), this court held that “. . . there is a constitutional due process right on the part of the criminal defendant to testify in his own behalf.”
¶5The precise issue in Aliceaconcerned the constitutionality of applying Wisconsin’s notice-of-alibi statute, sec. 971.23(8), Stats., to preclude the defendant’s alibi testimony because he failed to provide proper notice as required by that provision. That issue is precisely the issue that this court is faced with. The majority opinion emphasizes Wisconsin’s interest in achieving orderly trial procedure. In Alicea, the court recognized that concern, but nevertheless held:
“In addition, we do not consider Wisconsin’s interest in facilitating the orderly administration of justice sufficiently important to override the accused’s right to tell his version of the story. If a defendant takes the stand and denies his presence during the crime, the state can readily rebut his denial on cross-examination by asking the defendant to address the state’s evidence. If for some reason the state considers its evidence significantly weakened by a defendant’s unsubstantiated testimony, it should seek a continuance for further investigation, rather than seeking total preclusion of the defendant’s testimony.” 675 F.2d at 924.
¶6There is nothing in the facts of this case to indicate that the state’s interest in facilitating the orderly administration of justice could not have been accommodated had Burroughs been allowed to present his alibi testi*313mony. I am persuaded by the court’s reasoning in Alicea, and would therefore hold that the Wisconsin alibi-notice statute’s preclusion sanction was unconstitutionally applied against Burroughs because Burroughs was not allowed to testify as to his whereabouts at the time of the alleged offense. In addition, applying the test set forth in Chapman v. California, 386 U.S. 18, reh. denied, 386 U.S. 987 (1967), I would not find the error to be harmless beyond a reasonable doubt. First, there was evidence that the defendant could rely on to substantiate his claim that the victim had intercourse on that date with someone other than himself; second, unlike the defendant in Aliceawho managed to introduce his alibi testimony despite the trial judge’s preclusive ruling, Burroughs was unable to introduce his alibi testimony during trial. I would therefore reverse and remand.
¶7I am authorized to state that Justice Shirley S. Abra-hamson joins in this dissent.