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Intentionally Mistreating / Shooting Animal, Resulting in Death, §§ 951.02 951.09 and 951.18(1): Intent not Element – Pellet Gun Is Weapon

State v. Shawn M. Klingelhoets, 2012 WI App 55 (recommended for publication); for Klingelhoets: Robert R. Henak; case activity

Intentionally Mistreating Animal, Resulting in Death, §§ 951.02 and 951.18(1) – Intent Element 

Intentionally mistreating an animal, resulting in the animal’s death, contrary to Wis. Stat. §§ 951.02 and 951.18(1), doesn’t require intent to kill:

¶17      In sum, the plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated, disfigured or caused an animal’s death for that defendant to be guilty of the Class I felony because “intentionally” modifies only the first clause of the relevant penalty provision.  As such, the State only needed to prove Klingelhoets intended to treat Shakes in a cruel manner and that this cruel treatment resulted in Shakes’ mutilation, disfigurement or death.  Klingelhoets does not dispute that the State proved this.[5]

¶18      Though we could end our analysis here, it is of note that our conclusion is bolstered by an examination of the Wis. Stat.§ 951.18(1) penalty provision immediately following the penalty provision at issue,[6] which demonstrates that the legislature knows how to draft language plainly indicating a mens rea element if knowledge or intent is required.  That subsequent provision states, “Any person who intentionally violates [Wis. Stat. §] 951.02[], knowing that the animal that is the victim is used by a law enforcement agency to perform agency functions or duties and causing injury to the animal, is guilty of a Class I felony.”  (Emphasis added.)  The first clause here is essentially identical to the first clause in the penalty provision at issue in this case.  Unlike the penalty provision at issue in this case, however, the second clause of this subsequent penalty provision begins with the word “knowing.”  “[K]nowing” would be superfluous in this penalty provision if “intentionally” in the first clause modified both the first and second clauses.  See Hubbard v. Messer, 2003 WI 145, ¶9, 267 Wis. 2d 92, 673 N.W.2d 676 (“Each word should be looked at so as not to render any portion of the statute superfluous.”).

Intentionally Shooting Tied Animal with Deadly Weapon, § 951.09(1) – Weapon Element

Klingelhoets’ use of a pellet gun, which he fired at a dog 3 times from a distance of 144 feet, satisfied the “deadly weapon” requirement of § 951.09(1):

¶22      Klingelhoets argues that the evidence before the jury was insufficient to establish that the pellet gun he used to shoot Shakes was a “deadly weapon,” as is required to convict him under Wis. Stat. § 951.09.  Again, Klingelhoets is wrong.  The trial court gave the jury instructions for § 951.09 and included with the instructions the definition of “deadly weapon,” submitted by Klingelhoets’ trial counsel, which provided the following:  “‘Deadly weapon’ means an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.”

¶24      In deciding whether the pellet gun, from the manner in which it was used, might easily and readily produce death, the jury had before it powerful evidence of this fact—Klingelhoets’ third shot succeeded in penetrating Shakes’ skin and lodging in his spinal cavity, which ultimately resulted in Shakes’ death.  Furthermore, the jury also heard testimony that:  (a) Klingelhoets shot Shakes not once but three times from within the gun’s firing range and only stopped firing after Shakes “went down”; (b) the weapon Klingelhoets used to shoot Shakes was a “high-powered air rifle” which had a velocity that was “at the upper end of the velocities” for its caliber; (c) all three shots from the rifle caused wounds which succeeded in penetrating Shakes’ skin, with the third shot penetrating to the spinal canal; (d) death is a common result of the type of injury Klingelhoets inflicted on Shakes with his third shot; (e) the rifle had a scope on it, which Klingelhoets used in shooting Shakes.

¶25      Based on this testimony, there was sufficient evidence from which a reasonable jury could find that the pellet gun used by Klingelhoets to shoot Shakes, from the manner in which it was used in this case, could easily and readily produce death and, therefore, was a “deadly weapon,” as that term is used in Wis. Stat. § 951.09.

Curiously, perhaps, the statutes don’t define “deadly” (in contradistinction to “dangerous”) weapons so, according to Klingelhoets principal brief (pp. 16-17), “at trial, the court used a definition from a United States Supreme Court case, Washington v. Recuenco, 548 U.S. 212, 226 (2006) (Stevens, J., dissenting) (defining ‘deadly weapon’ as ‘any implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death’).” The parties seem to have accepted this definition on appeal, as does the court, at least implicitly. As to whether this now settles the meaning once and for all – your guess is as good as the next person’s.

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