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Instructions – Self-Defense – Deadly Force, JI-805; Restitution

State v. Joseph Gayden, 2010AP2360-CR,District 1, 8/30/11

court of appeals decision (not recommended for publication); for Gayden: Matthew S. Pinix; case activity

The difference between Wis JI-Criminal 800 and 805 is that the latter limits the defendant’s intentional use of force intended or likely to cause death or great bodily harm to reasonable belief that the force is necessary to prevent imminent death or great bodily harm. JI 805 was properly submitted: that the alleged victim may not have suffered great bodily harm is irrelevant to the decisive question whether the force was intended or likely to cause such harm, ¶¶14-15. The evidence supports 805: “the uncontroverted testimony shows that Gayden stabbed Stewart in the abdomen with a knife, only an inch from his lungs.  It is not at all unreasonable to infer that when someone thrusts a knife into an individual’s abdomen, only an inch from his lungs, in an area generally known to contain many vital organs, that someone does so with the intent to cause death or great bodily harm or that such an action is likely to cause death or great bodily harm,” ¶16.

¶19      … (B)efore restitution can be ordered, the victim must prove by a preponderance of the evidence, § 973.20(14)(a), that there is “a causal nexus” between “the ‘crime considered at sentencing’ and the disputed damage,” State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (citation omitted).  To prove causation, the “victim must show that the defendant’s criminal activity was a ‘substantial factor’ in causing damage.  The defendant’s actions must be the ‘precipitating cause of the injury’ and the harm must have resulted from ‘the natural consequence[s] of the actions.’”  Id. (citations omitted; brackets in Canady).

The court holds the causal link sufficiently established to support restitution for Stewart’s losses (medical payments and lost wages), without necessity of expert testimony that the medical services were all related to the stabbing. It was enough that a subrogation files handler for the insurance company testified she had seen the medical records and believed them to be all associated with injuries suffered in the stabbing, ¶¶19-23.

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