Court won’t overturn attempted murder verdict

ANCHORAGE — A man convicted in 2011 of attempted murder for taking a shot at his girlfriend has lost his appeals case.

Albert B. Escholt, 48, of Houston, was charged with attempted murder in January 2010. He took his case to trial and his jury voted to convict him on June 8, 2011.

According to a decision in his appeals case penned by Alaska Appeals Court Judge Marjorie Allard, the case began with a night of heavy drinking that led to a heated argument. At some point during the fight, his girlfriend ran out to her Chevy Suburban. She testified at trial that it seemed like Escholt had calmed down so, instead of leaving, she sat in the driveway making calls to her family.

“(She) was looking down at her cellphone when she heard a gunshot and felt glass hit her face. She looked up to find Escholt scraping out the remaining glass in the passenger’s side window of the Suburban with the barrel of a gun, which he then pointed at her. He told her to call her parents and tell them she loved them because she would never see them, or her children, again,” Allard wrote.

She cried, asked Escholt not to kill her, and Escholt turned away, at which point she drove the Suburban out of the driveway.

On appeal, Escholt argued that his conviction should be overturned because the prosecutor in the case improperly told the jury that a small piece of metal found in his girlfriend’s face after the shooting was a piece of the bullet he fired.

At trial, the girlfriend had tried to testify that her doctor said the metal was “from probably the bullet” but since that counts as hearsay — she heard the doctor say it, it wasn’t an expert opinion of her own — the judge ruled the jury had to disregard the statement that the fragment was from the bullet.

In slapping down Escholt’s arguments, Allard quotes the prosecutor’s closing statements where the metal fragment comes up.

“A piece of a bullet fragment or piece of metal also hit her in the face,” the prosecutor says at one point and then, at another point: “It was a bare miss. The bullet fragments in that — from that bullet — actually hit her in the face.”

But, Allard writes, this isn’t necessarily improper for the prosecutor to have said.

“A prosecutor is entitled to argue facts that are, ‘within the range of reasonable inference which could be drawn from the evidence,” Allard writes. “Here, the evidence properly before the jury was that the bullet had fragmented within the Suburban, embedding pieces of metal in the rubber molding of the Suburban door, and that a tiny ‘dot’ of metal was found in (the girlfriend’s) temple a few days after the incident. Given these circumstances, it was within the acceptable range of reasonable inference for the prosecutor to assert that the piece of metal found in (her) temple came either from a bullet fragment or from some other metal debris created by the fragmenting bullet.”

Allard and the rest of the court therefore affirmed Escholt’s conviction but did side with him on one minor point — that corrections to a document in his case called the pre-sentence report should have been adopted into the final version of that document and were not. The appeals court sent the case back to Palmer to fix that paperwork.

Contact Andrew Wellner at 352-2270 or andrew.wellner@frontiersman.com.