A three-judge federal appellate panel in Richmond has affirmed a lower court's ruling that a Prince George's County man's constitutional rights were violated when the jury that convicted him of sex abuse was allowed to consider out-of-court statements by the 5-year-old alleged victim.

Ervin D. Ellison IV, of Oxon Hill, was found guilty of a second degree sexual offense after a Prince George's Circuit Court judge allowed prosecutors to present pre-trial testimony given by the girl. In her statement, given at a preliminary hearing, the girl identified Ellison as the man who raped her while she was attending nursery school in January 1982.

The U.S. District Court in Baltimore reversed the conviction on constitutional grounds after a state appeals court upheld the conviction.

In the latest ruling, issued Friday, the federal appellate judges said that the girl's identification of Ellison as her assailant should not have been treated as evidence because it was offered at a pre-trial hearing. At the trial, Circuit Court Judge Arthur Ahalt allowed the pre-trial statements to be read by a police detective after she was unable to testify.

Debra Johnston, the public defender who represented the girl, said yesterday that the girl was called to testify but "clammed up and wouldn't say anything" when confronted by her alleged assailant, who sat five feet away, in open court.

Ellison's attorneys, however, argued that that their client was deprived of his 6th Amendment right to confront his accuser in open court. The judges, in their six-page opinion, agreed.

The opinion cited "serious discrepancies" in the child's testimony that was used to link Ellison to the alleged assault.

"The obvious limitations in observation, expression and understanding of a five-year-old help explain the various discrepancies in her descriptions," the opinion read. "But they also underscore the care with which courts must approach the question of introducing such hearsay . . . "

Lawyers familiar with the case said yesterday that the appellate decision is unlikely to have any far-reaching effect on future prosecution of child abusers because the circumstances of this one were so unusual.

Debra Chasanow, chief of the Maryland Attorney General's criminal appeals division, said the decision would not have broad impact.

*She said that the state has not yet decided whether to appeal the latest decision.

Ellison, who was sentenced to four years in jail but who has been free on bond since the appeals process began, said yesterday that he was happy with the decision. His Baltimore attorney, Barnet D. Skolnik, said that Ellison had been "wrongly convicted" in the first place.