Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).
On appeal, Mays argues the species of felony murder of which he was convicted is not a crime described by the statutes. Felony murder, of course, requires a death resulting from the commission of one of several enumerated crimes. One of those enumerated crimes–the one relied on here–is burglary. And burglary–just like felony murder–is also a crime that incorporates the definition of other crimes. You commit burglary by knowingly entering a place without consent with the intent to steal or to commit a felony. The felony the state said Mays intended when he entered the apartment was reckless endangerment.
But hold on, says Mays. You can’t “intend” to commit reckless endangerment: it’s a reckless crime, and “recklessness” is a state of mind inconsistent with the state of mind denoted by “intent.” Mays cites State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970), and State v. Carter, 44 Wis. 2d 151, 170 N.W.2d 681 (1969). In each, the state supreme court held the trial court had properly refused to instruct the jury on attempted reckless homicide (and attempts at other forms of homicide not involving intent to kill). The thrust of the reasoning in each was the same: to “attempt” a crime, one must have the intent to achieve the end that would constitute the crime. In the case of a homicide, that end is death of the victim. So an attempted homicide necessarily involves intent to kill, whereas reckless homicides involve a different mens rea: recklessness.
But reckless endangerment, the courts says here, is different: death isn’t an element; the creation of a dangerous situation is. The court cites State v. Kloss, in which it held it is possible to solicit a reckless crime–in part because the solicitor can have a different mind state than the solicitee. Here, there is no solicitor, just a principal, but the court says that principal can intend to create a dangerous situation while still acting recklessly; in fact, it’s essentially the statutory definition of “recklessness”:
Like the defendant in Kloss, while Mays could not know with certainty that his conduct would cause Smith’s death, the certainty of that result was not required for Mays to “form a purpose to cause a particular result—that is, an intent that a result take place.” See id., 386 Wis. 2d 314, ¶10; see also WIS. STAT. § 939.23(4). Rather, Mays’s actions reflect that he had formed a purpose to endanger the safety of Richardson and others in Smith’s apartment, which was the clear result of his criminally reckless conduct. See WIS. STAT. § 941.30(2).