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Convictions for battery, violation of no contact order upheld

State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)

Nicholson challenges the validity of the no-contact order he was convicted of violating, and also argues his rights to confrontation and to testify were violated. The court of appeals rejects his claims.

The no-contact order

In 2011 Nicholson was charged with aggravated battery of M.D.F. and resisting an officer. M.D.F. didn’t show up for trial, so the battery charge was dismissed, but Nicholson was convicted of resisting. (¶¶2-4). At the sentencing on the resisting, the circuit court ordered Nicholson to have no contact with M.D.F. under § 973.049(2). (¶4). That statute allows a sentencing court to place restrictions on a defendant’s contact with a victim of a crime “considered at sentencing” and provides that “[f]or purposes of the prohibition, the court may determine who are the victims of any crime considered at sentencing.”

In 2013 Nicholson was charged under § 941.39 for violating the no-contact order. (¶5). Nicholson argues the order was void because it’s not authorized under § 973.049(2). The court of appeals disagrees, based on State v. Campbell, 2011 WI App 18, ¶¶23-29, 331 Wis. 2d 91, 794 N.W.2d 276 (discussed here), which held that § 973.049(2) grants the court discretion to prohibit a defendant from contacting victims of a crime considered at sentencing as well as to decide who are the victims of a crime considered at sentencing:

¶19     We conclude that the sentencing court properly exercised its discretion in determining that M.D.F. was a victim of a crime considered at sentencing. As stated, Nicholson was convicted of resisting an officer. The crime of resisting an officer has four elements: (1) the defendant resisted or obstructed an officer; (2) the officer was doing an act in an official capacity; (3) the officer was acting with lawful authority; and (4) the defendant knew the officer was acting in an official capacity with lawful authority. See WIS JI—CRIMINAL 1765. Here, the officers were acting in an official capacity and within their lawful authority in response to a domestic violence incident in which M.D.F. was severely injured. Nicholson’s arrest stemmed from the officers’ reasonable belief that Nicholson caused M.D.F. to sustain those severe injuries. Had officers not been responding to an incident in which M.D.F. was obviously seriously hurt, Nicholson would not have been arrested and the resulting resisting an officer charge would not have been issued. Nicholson’s resistance to his arrest … “was part of a larger criminal episode” that resulted in his arrest. Thus, the sentencing court properly exercised its discretion in determining that M.D.F. was a victim of a crime considered at sentencing. Accordingly, the no-contact order was valid.

Right to confrontation

When Nicholson was charged with violating the no-contact order the state also reissued the aggravated battery charge. Once again M.D.F. was uncooperative, so the state instead introduced the statements M.D.F. made to the officers who were dispatched to her home following the battery. (¶¶6-8). The court of appeals first rejects Nicholson’s claims that M.D.F.’s statements were hearsay, holding the statements were admissible under § 908.03(2)’s excited utterances exception (¶¶23-25).

Next, the court rejects the claim that admitting the statements violated his right to confront M.D.F. The statements were not barred by the Confrontation Clause because, under Davis v. Washington, 547 U.S. 813, 822 (2006), they were not testimonial; instead, they were made amidst an ongoing medical emergency and were intended to help police assist in addressing that emergency. See also State v. Rodriguez, 2006 WI App 163, ¶23, 295 Wis. 2d 801, 722 N.W.2d 136 (“Insofar as a victim’s excited utterances to a responding law-enforcement officer encompass injuries for which treatment may be necessary, or reveal who inflicted those injuries, which may facilitate apprehension of the offender, they serve societal goals other than adducing evidence for later use at trial.”) (¶¶26-28).

Right to testify

At trial, when the judge tried to engage Nicholson in a colloquy regarding his right to testify and expressly asked him if he wanted to testify, Nicholson wouldn’t respond. The circuit court took his silence as a waiver of the right to testify. (¶¶10-12). Nicholson now claims he was denied the right to testify, but the court of appeals finds he forfeited this claim by refusing to respond, as that action is incompatible with an assertion of the right, State v. Anthony, 2015 WI 20, ¶55, 361 Wis. 2d 116, 860 N.W.2d 10. (¶¶29-31).

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