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§ 940.19(5), Aggravated Battery — First-degree Reckless Endangering Safety, § 941.30(1), Not Lesser Included Offense of

State v. Russell L. Dibble, 2002 WI App 219, PFR filed 8/14/02
For Dibble: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: First-degree recklessly endangering safety, § 941.30(1), is not a lesser included offense of aggravated battery, § 940.19(5), under the “elements-only” test. Aggravated battery requires intent (to cause great bodily harm); endangering safety requires recklessness (while showing utter disregard for human life). It is this last — utter disregard — that distinguishes the two crimes. You can commit aggravated batterywithout having utter disregard for human life, and therefore reckless endangering is not a lesser offense of aggravated battery.

The court essentially assumes that  “utter disregard” is wholly distinct from intent to cause great bodily harm. But how can someone intentionally inflict great bodily harm without being indifferent to that person’s life? “Utter disregard” is not a specific-intent element; it refers to general intent to do harm, and is shorthand for conduct that evinces indifference to life. Balistreri v. State, 83 Wis. 2d 440, 448, 265 N.W.2d 440 (1978). It seems perfectly clear that whenever you intentionally cause great bodily harm to someone you’re engaging in conduct that evinces total indifference to that person’s life. Put it a slightly different way: “great bodily harm” necessarily runs “a substantial risk of death” or something close, sec. 939.22(14); is it possible to intentionally inflict that level of harm without evincing utter disregard for life? Notably, the court didn’t suggest a single hypothetical example showing how an actor could commit aggravated battery without also committing reckless endangering.

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