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Sexual Assault; Charging Document; Excited Utterances; Newly Discovered Evidence

State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11

court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity

Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.

¶23      In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.  The facts of the case plainly demonstrate that the shooting occurred “‘during the course of conduct that immediately … followed’” the nonconsensual intercourse.  See Schambow, 176 Wis. 2d at 299 (citation omitted).  The only event separating the sex act from the shooting was Echols’ corralling his victims from a bedroom to a nearby alley, which—given that the security video shows three people leaving Merriweather’s apartment at about 1:22 a.m. and Xiong heard shooting at about 1:30 a.m.—took mere minutes.  Moreover, Echols points to no authority for his contention that the trial court “impermissibly stretched the definition of ‘immediately following’ in finding Echols guilty of first-degree sexual assault.”  In fact, in Schambow, the only case Echols does cite for this contention, the exact timeline of events—including when the sexual assault and great bodily harm occurred—was unclear.  See id. at 291.

¶24      Echols met M.F. and G.H. at the door at gunpoint, sexually assaulted M.F. at gunpoint, and then shot both M.F. and G.H. within minutes of the sexual assault.  We therefore conclude that the trial court did not err in finding evidence of great bodily harm beyond a reasonable doubt.  See Poellinger, 153 Wis. 2d at 507.

Though the charge and conviction was for first-degree sexual assault / great bodily harm (§ 940.225(1)(a)), the proof also established guilt of first-degree sexual assault / dangerous weapon (§ 940.225(1)(b)) – because the harm was inflicted by gunshots – and therefore the conviction can be sustained on appeal under the latter provision, by dint of §  971.29(2). ¶¶25-27 (citing State v. Malcom, 2001 WI App 291, ¶¶19-30, 249 Wis. 2d 403, 638 N.W.2d 918, et al., as examples of “numerous cases … that allow substantive, not just typographical, amendments to the complaint”).

“The purpose of a charging document is to inform the accused of the acts he is alleged to have committed in order to enable him to prepare a defense. … [W]hen the defendant has adequate notice of the amended count—in that the amendment does not change the crime charged and the alleged offense remains the same and results from the same transaction—a defendant is not prejudiced.”  State v. Derango, 2000 WI 89, ¶50, 236 Wis. 2d 721, 613 N.W.2d 833. If the two offenses at issue weren’t the “same,” then lack of notice (hence, prejudice) necessarily follows. Sexual assault / dangerous weapon doesn’t appear to be the “same” offense as sexual assault / great bodily harm – the elements are distinct, and contained in separate subsections. The issue called for something more than uncritical adoption of an alternative theory of affirmance tossed off by the State as an afterthought.


Statement made 8 days after the declarant was shot qualified as an excited utterance: she became “very excited” and grew “hysterical” during the interview, therefore remained under stress of the event (the shooting), ¶¶28-31. A different statement by another declarant also qualified, though made 4 months after he was shot: “Given that G.H. had spent four months in the hospital before he could even speak to police, and given the terrifying events he recalled, it was not erroneous for the trial court to determine that he was still under the stress of the event,” ¶32. (Standard for review of excited utterance admissibility recited, ¶¶28-29.)

Postconviction assertion that an expert’s assessment of a videotape would show that a State’s witness couldn’t have reliably identified Echols on it did not amount to newly discovered evidence: the evidence wasn’t discovered after conviction; counsel thoroughly cross-examined the identification witness at trial; the expert’s proposed testimony wasn’t “material” (the witness identified Echols on the tape by his gait and shoes as well as his face); and, evidence of guilt was overwhelming, ¶¶41-45 (including standard of review).

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