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§ 940.23(1), Reckless Injury — “Utter Disregard for Human Life”

State v. Stephen L. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, affirming unpublished decision
For Jensen: James L. Fullin, SPD, Madison Appellate

Issue1: Whether the first degree reckless injury (§ 940.23(1)) element of “utter disregard for human life” requires proof of the actor’s subjective awareness of the risk of death.

Holding: “¶17 Although ‘utter disregard for human life’ clearly has something to do with mental state, it is not a sub-part of the intent element of this crime, and, as such, need not be subjectively proven. It can be (and often is) proven by evidence relating to the defendant’s subjective state of mind — by the defendant’s statements, for example, before, during and after the crime. But it can also be established by evidence of heightened risk, because of special vulnerabilities of the victim, for example, or evidence of a particularly obvious, potentially lethal danger. However it is proven, the element of utter disregard for human life is measured objectively, on the basis of what a reasonable person in the defendant’s position would have known. If proven, the offender is considered more culpable because the conduct, according to the standards observed by the great mass of mankind, went beyond simple criminal recklessness to encompass something that, although falling short of an intentional crime, still deserves to be treated more seriously under the law and punished more severely.”

Note: “utter disregard” has the same meaning as “depraved mind,” used in predecessor statutes. ¶¶18-20.

Issue2: Whether the evidence sufficiently established the “utter disregard” element.Holding: Evidence that the adult defendant violently shook a 10-week old baby in a fit of anger, causing severe similar trauma equivalent to being dropped three stories, satisfied this element, notwithstanding a 911 call for help after the act. ¶¶24-33


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