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Subsequent mitigating action didn’t extinguish factual basis for reckless endangering conviction

State v. Jonathan N. Reiher, 2019AP2321-CR, District 4, 10/29/20 (not recommended for publication); case activity (including briefs)

The court of appeals rejects the defendant’s claim that his pleas to reckless endangerment lacked a factual basis.

In retaliation for getting kicked out of the house he was living in, Reiher vandalized the place; in the process he damaged the propane gas furnace and caused a gas leak. Though he turned off the gas to the furnace and emptied the propane tank, several weeks later two workers repairing the damage to the home turned the gas back on, and were injured when the furnace exploded. (¶¶2-4).

Reiher was charged with various crimes, and ultimately pled no contest to two counts of second-degree recklessly endangering safety. (¶¶5-6). Postconviction, he claimed there was insufficient factual basis for his pleas because of the steps he took to mitigate the damage to the furnace. The court of appeals disagrees:

¶15     …. “Criminally reckless” conduct is defined as conduct that creates “a risk of death or great bodily harm to another person,” where the risk was “unreasonable and substantial,” and where the defendant was “aware” of that risk. Wis. Stat. § 939.24(1); see also Wis. J.I.—Criminal 1347.

¶16     Reiher argues that his conduct was not “criminally reckless” because he undisputedly took some steps—turning off the gas and emptying the tank—that reduced the immediate risk of death or great bodily harm. …. Reiher argues that when he left the residence, there was “no active risk … because the flow of gas had been stopped and the propane gas tank emptied.” As we understand his argument, Reiher contends that he could not as a matter of law be found guilty of reckless endangerment because the risk was no longer “unreasonable and substantial” after he took those actions.

¶17     …. It cannot be reasonably disputed that Reiher created an unreasonable and substantial risk of harm when he vandalized the furnace, which caused the gas leak. And his subsequent actions did not “eliminate” that risk as he now contends. …Reiher appears to acknowledge that the furnace had to be repaired before it could be safely used. Reiher did not repair the furnace, and there is at minimum a fact question as to whether it continued to pose an “unreasonable and substantial” risk, despite what he characterizes as an attempt to mitigate that risk. ….


¶19     …Reiher appears to argue that he cannot as a matter of law be guilty of reckless endangerment because there was an “intervening factor” between his conduct and the injury. According to Reiher, the intervening factor was that someone else filled the propane tank and turned on the gas and, without this intervening factor, it is unlikely that the explosion would have occurred. …Reiher does not point to any pertinent legal authority that discusses intervening factors, much less any authority that supports his argument that such intervening factors militate against a finding of criminal recklessness.

¶20     …Reiher [also] argues that it was not “foreseeable” that someone else would fill the tank and turn on the gas before fixing the furnace. Therefore, he contends, he could not have been “aware” that he had created an unreasonable and substantial risk.

¶21     We disagree. …. As the circuit court explained, it was foreseeable that the gas tank would be filled and turned back on at some point. …. And indeed, the very action that Reiher relies on—that he turned off the gas after noticing the leak—demonstrates that he was aware of the risk that he caused.

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