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Evidence defendant shot a gun at prior incident was admissible

State v. Terrell Dawon Essex, 2017AP1509-CR, District 1, 5/15/18 (not recommended for publication); case activity (including briefs)

Essex was on trial for being a felon in possession of a firearm and first degree reckless homicide of a man named Dotson by use of a dangerous weapon. The circuit court allowed the state to present evidence that on a prior occasion Essex used the same firearm involved in Dotson’s shooting. The court of appeals holds the evidence was admissible.

The circuit court let the state admit bullet casings that police found in Essex’s car in May 2015 when police were investigating a drive-by shooting in which Essex was the victim. The state argued the casings were consistent with someone inside Essex’s car having returned fire and that the State Crime Lab compared the casings from the May 2015 incident to the bullets fired at Dotson and concluded the casings were fired from the same gun. (¶¶2-4).

The court of appeals rejects the Essex’s argument that the evidence of the May 2015 shooting was improper other-acts evidence:

¶13     We disagree with Essex’s characterization of the evidence at issue as “other acts,” and instead agree with the trial court that the evidence at issue was direct evidence linking Essex to the firearm used to kill Dotson. The State did not allege that Essex committed an “other act” in May 2015. The jury was told that Essex was the victim in the May 2015 drive-by shooting.

¶14     Rather, the evidence—casings found in Essex’s car in May 2015 and expert testimony that the casings matched those found at the scene of Dotson’s shooting—was relevant and probative as to both of the charges against Essex. Essex was charged with first-degree reckless homicide by use of a dangerous weapon, as a party to a crime, and felon in possession of a firearm, as a repeater. Evidence that the gun used to kill Dotson had been in Essex’s possession months prior to the shooting was relevant to whether Essex either directly caused Dotson’s death by shooting him, or aided and abetted in the death by providing the weapon used to kill Dotson. The evidence was also relevant to whether Essex was in possession of the firearm used to kill Dotson.

¶15     Two witnesses saw Essex with a firearm on the day Dotson was shot. L.H. witnessed Essex pull a gun out on the day of the shooting and threaten Dotson. R.M. identified Essex as the man who shot her and Dotson. Evidence of the May 2015 bullet casings ultimately corroborated the witnesses’ testimony and served as tangible evidence connecting Essex to the crimes charged.

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