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§ 940.02, First-degree reckless homicide — Subjective Awareness of Risk — sufficiency of evidence

State v. Jefrey S. Kimbrough, 2001 WI App 138, PFR filed 6/25/01
For Kimbrough: Glenn C. Cushing, SPD, Madison Appellate

Issue: Whether the evidence satisfied the reckless-conduct element, in particular that the defendant was subjectively aware of the risks in shaking a baby who died as a result.

Holding: The jury was entitled to draw a finding of guilt on this element from competing inferences: Though defendant’s intelligence was “limited,” he wasn’t retarded; nor was there evidence that he was incapable of appreciating the risk of shaking a baby. ¶15. Despite statements that defendant gave to the police indicating a lack of awareness of the consequence of his act, he also lied in minimizing his conduct, which the jury could reasonably infer was due to his awareness of the risk of his conduct. ¶18: “We concur with the view expressed in case law that such escalating admissions may be used by the jury to infer the defendant’s subjective awareness of the risk posed by shaking a baby.”

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