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Sentencing — consideration of dismissed charge. Resisting/obstructing, § 946.41 — sufficiency of evidence.

State v. Earnest Lee Nicholson, 2013AP722-CR, District 1, 10/29/13; court of appeals decision (1-judge; ineligible for publication); case activity

Nicholson was arrested for felony battery of his girlfriend, Marnice Franklin, but the battery charge was dismissed after Franklin failed to appear to testify at trial; Nicholson was also charged with resisting an officer, and that charge proceeded to trial and a guilty verdict. (¶¶2-4). At sentencing on the resisting charge the judge made extensive remarks concerning the alleged battery, relying on Franklin’s statements as reported by the police and the prosecutor. This was not error:

¶11      The trial court properly considered the allegations concerning the dismissed charge. The trial court’s comments regarding Franklin’s injuries and phone calls made to Franklin pertained to Nicholson’s character and the trial court’s concern for the community. The trial court properly drew from its knowledge of Nicholson’s character. See [State v.Leitner, [2002 WI 77,] 253 Wis. 2d 449, ¶45[, 646 N.W.2d 341]. Moreover, the trial court did not impermissibly rely on hearsay evidence. The rules of evidence do not apply at sentencing and a sentencing court may consider hearsay or even suppressed evidence. State v. Marhal, 172 Wis. 2d 491, 502-03, 493 N.W.2d 758 (Ct. App. 1992).

The court also holds the evidence was sufficient for the jury to find Nicholson resisted an officer or knew that his conduct would resist the officer because “[t]he record reflects that Nicholson verbally challenged his arrest and attempted to physically fight the officers.” (¶15).

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