(dissenting). Brian C. Wulff appeals from a judgment entered March 17, 1994, on a jury verdict convicting him of second-degree sexual assault, contrary to § 940.225(2)(d), Stats. Wulff raises a number of issues but the one I conclude requires reversal is the prosecutor's closing rebuttal argument that Wulff s *346post -Miranda1 silence during police questioning was a factor "worth thinking about" in assessing Wulffs credibility.
The State argues that Wulff invited the error by testifying in his defense and describing the events leading up to the alleged assault. However, this is not a case in which a defendant has given one story to police and then testifies differently. In this case, Wulff simply told the investigating officer that he didn't feel comfortable answering any more questions. The prosecutor asked him whether the reason he had stopped talking to the police was because "you wanted her [Sgt. Larson] to tell you what she knew before you would talk to her, correct?" The defendant answered, "Yes."
The prosecutor stated in rebuttal argument: "When a man does not want to say anything to the police until he finds out what the police know, I think that's worth thinking about." The courts have repeatedly said that no inference can be drawn from the defendant's silence prior to trial. "If the fifth amendment means anything, it not only means that the defendant has the right to refrain from making statements that might tend to incriminate him, but it also means that the exercise of that right will not be used against him later in a criminal proceeding." Neely v. State, 86 Wis. 2d 304, 316, 272 N.W.2d 381, 386 (Ct. App. 1978), aff'd, 97 Wis. 2d 38, 292 N.W.2d 859 (1980).
The prosecutor, however, asked the jury to infer guilt from Wulffs refusal to answer the investigating officer's questions until he knew what evidence the police had. However, that right is clearly protected by the Fifth Amendment.
*347I do not believe this error can be considered harmless. As is usually true in sexual assault cases, this became a credibility contest between the alleged victim and the defendant. The alleged victim's credibility was very much in doubt considering the circumstances surrounding the alleged assault. She admitted she was very drunk and couldn't remember what happened. The State presented three theories to the jury: attempted sexual contact, attempted sexual intercourse by fellatio and attempted sexual intercourse by genital or anal penetration. The State had to prove each theory beyond a reasonable doubt. See State v. Crowley, 143 Wis. 2d 324, 334, 422 N.W.2d 847, 851 (1988). Thus, the State had to show that Wulff attempted to penetrate the victim genitally or anally. The only evidence to support that charge was the victim's testimony that her tampon was missing. However, there was no evidence that Wulff removed her tampon and, in fact, the tampon was never introduced, nor did the victim testify as to what happened to the tampon.
The prosecutor attempted to fill the evidentiary vacuum with Wulff s silence. That effort can hardly be harmless error.
The State could use post-Miranda silence only to contradict an exculpatory version of events which a defendant claims he gave to the police. See Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976).
The State also argues (although not very strenuously) that Wulff waived the error by failing to object to the prosecutor's argument. The error vitiating defendant's Fifth Amendment rights is so fundamental that he must be granted a new trial. See State v. Vinson, 183 Wis. 2d 297, 303, 515 N.W.2d 314, 317 (Ct. App. 1994).
*348For these reasons, I respectfully dissent.
Miranda v. Arizona, 384 U.S. 436 (1966).