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Court overturns attempted homicide conviction (UPDATE)

Associated Press

MADISON, Wis. (AP) — A man convicted of severely beating a Brown County gas-station clerk in 1994 had his conviction overturned this week after an appeals court ruled that a statute of limitations should have applied to his case.

Rodney A. Larson was charged in 2008 with attempted first-degree intentional homicide in a pipe attack that left the clerk with severe head injuries. Larson consistently maintained his innocence, and argued that DNA evidence presented at the two-day trial was faulty.

He was convicted and sentenced to 15 years. He later appealed, arguing that the statute of limitations for his charge had expired.

Prosecutors argued that there’s no statute of limitations for first-degree intentional homicide. But in a ruling released Tuesday, the Wisconsin Court of Appeals ruled that when the charge is modified with “attempted,” as in this case, it becomes a different charge.

The court concluded the same six-year statute of limitations that applies for most felonies should have applied to Larson’s charge.

The state had argued that adding “attempted” to a charge “does not alter the substantive nature of the charge.” It said that a defendant can’t be guilty of “attempt” alone and that the word only has legal meaning when it’s applied in conjunction with an underlying offense.

The court acknowledged that this argument had merit. But it also agreed with Larson’s argument that the charge for which he was convicted wasn’t specifically, word for word, one of the limited charges for which Wisconsin law granted a statute-of-limitations exemption.

The court looked to historical precedent to conclude that there’s a difference between prosecuting for homicide and prosecuting for attempted homicide.

A 1988 Wisconsin statute, which would have been applicable at the time of the crime, said that prosecution of first-degree intentional homicide, first-degree reckless homicide and felony murder could be commenced at any time. All other homicides would have to be prosecuted within six years of the crime.

“The phrase ‘a prosecution for murder’ unambiguously refers to prosecution of a completed offense,” not an attempt, the ruling said.

The court also alluded to a similar ruling by Oregon’s Court of Appeals regarding attempted rape. Those justices noted that if legislators wanted to apply the same penalties for attempted rape as for actual rape, the lawmakers could easily have done so.

The Wisconsin justices also pointed out that the maximum penalty for first-degree intentional homicide is life in prison, while the maximum penalty for attempted first-degree intentional homicide is 40 years in prison.

Clearly the legislature views the completed crime as more serious than the attempt for sentencing purposes, the court said.

“It therefore follows that the legislature intended the attempted crime to have a shorter statute of limitations than the completed crime,” the court wrote.

A message left with the Brown County prosecutor’s office was not immediately returned. The state can appeal Tuesday’s ruling to the state Supreme Court. Otherwise, Larson would be released.

Chris Gramstrup, the attorney who helped handle Larson’s appeal, said the Wisconsin appeals court’s ruling was “absolutely accurate.”

“We felt we had a very strong argument,” he said.

When asked whether the victim’s family might be upset that Larson got off on a perceived technicality, he said this was no technicality.

“It’s the law, it’s the Constitution. It has to be followed, not just by the defense but by the state,” he said. “And I also don’t think Mr. Larson is the guy who did it. To the family of the victim I would say I hope they find whoever did it and that justice at some point is served for them.”

Dinesh Ramde can be reached at

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