A state appeals court has reinstated a felony charge against an Oregon motorist accused of running two bicyclists off a rural Fitchburg road after finding that a Dane County judge erroneously dismissed the case more than a year ago.
A three-judge panel of the 4th District Court of Appeals, in an opinion issued Monday, ordered that a second-degree reckless endangerment charge against John Dohm be reinstated because prosecutors had provided adequate proof during a preliminary hearing that a felony had been committed.
In January 2016, Circuit Judge William Foust dismissed two counts of second-degree reckless endangerment against Dohm, concluding that then-Assistant District Attorney Shawn O’Connell had presented insufficient evidence to continue the case. Foust has since retired.
At the preliminary hearing, O’Connell presented the criminal complaint and testimony from a Fitchburg police officer. Dohm’s lawyer, Charles Giesen, presented a diagram drawn by a different police officer which he argued showed that Dohm was mostly in the opposite lane of traffic when he passed the bicyclists. Giesen argued that the diagram showed the bicyclists were side-by-side and taking up most of one side of the road.
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A criminal complaint states that in August 2015, after some words between Dohm and the bicyclists, Dohm’s car made contact with one of the bicycles, which collided with the other bicycle, causing both riders to fall and suffer injuries.
After Foust initially denied Giesen’s motion to dismiss, Giesen attempted to call one of the bicyclists to the stand, and O’Connell objected. O’Connell’s refusal to allow the bicyclist’s testimony to address Giesen’s contention concerning the diagram led to Foust’s dismissal of the charges.
The appeals court panel, composed of judges Brian Blanchard, Paul Lundsten and JoAnne Kloppenburg, called that “puzzling.”
“Indeed, the court’s decision to dismiss is puzzling because the court had earlier explained why the allegations in the criminal complaint supplied probable cause and the court reaffirmed that conclusion even after the diagram was admitted into evidence,” the panel wrote. “In effect, from an evidentiary standpoint, nothing changed between the time the circuit court concluded there was probable cause and the time the court reached the opposite conclusion.”
The case now heads back to Dane County Circuit Court. Giesen said he hasn’t decided whether he’ll appeal the decision to the state Supreme Court.
“As (the judges) point out there is a great deal of conflicting evidence about who caused the collision,” Giesen said. “We will press that when we get back to court.”