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§ 940.19(5), Aggravated Battery – Intent Element not Refuted, Lesser Included Option of 2nd-Degree Reckless Injury not Supported on Facts

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se


¶52   We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes. In so concluding, we reject Miller’s argument that, by aiming for Nakai’s thigh and not his abdomen, chest or head, a reasonable jury could conclude that he did not intend to cause Nakai great bodily harm.¶53   We further conclude that Miller, who had experience with firearms as an army reservist and a hunter, would have been aware that his conduct was practically certain to cause protracted loss or impairment of function of Nakai’s leg. We reject Miller’s argument that a reasonable jury could have concluded that Miller did not intend to cause Nakai great bodily harm based on his testimony that his purpose in shooting Nakai was “to stop him.” The fact that Miller’s conduct was intended to neutralize the threat posed by Nakai does not negate the fact that, by firing the shotgun at Nakai’s thigh, Miller also intended to cause Nakai great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to Nakai.

¶54      We conclude that, because the only reasonable view of the evidence is that Miller intended to cause Nakai “great bodily harm” as defined in Wis. Stat. § 939.22(14), no reasonable jury could have acquitted Miller of aggravated battery unless it accepted his defense of self-defense or defense of others. However, if a reasonable jury did accept one of those defenses, it would also acquit Miller of second-degree reckless injury. Thus, there is no reasonable basis in the evidence for an acquittal on the aggravated battery charge and a conviction on the second-degree reckless injury charge. Accordingly, Miller was not entitled to a lesser-included instruction for second-degree reckless injury for this charge.

The dissent would go farther, ¶¶81-95, and conclude that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.


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