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“Twilight zone” between great bodily harm and bodily harm is for jury

State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)

Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.

Great bodily harm.  Davis was charged with child abuse, which penalizes only two types of harm: bodily harm and great bodily harm. See § 948.03.  The Crimes–General Provisions statute §939.22, on the other hand, includes definitions for bodily harm, substantial bodily harm and great bodily harm. The legislature added “substantial bodily harm” to the general battery statute in 1994, but the child abuse statute remained unchanged.  The court of appeals thus assumed that the legislature’s decision not to change the child abuse statute was intentional. Slip op ¶17.

The court further held that bone fractures may qualify as “great bodily harm” under the “other serious bodily injury” segment of the “great bodily harm” definition. Slip op. ¶20 (citing State v. Ellington, 2005 WI App 243, 288 Wis. 2d 264, 707 N.W.2d 907)). Indeed, the legislature intended the term “other serious bodily injury” to broaden the scope of “great bodily harm.”  There is no clear of demarcation between bodily harm and great bodily harm. The situation falls “into a twilight zone that the jury must resolve.” In this case, a jury could conclude that broken bones constitute “great bodily harm,” ¶22.

Ineffective assistance of counsel. The court of appeals also rejected Davis’s claim that his trial counsel was ineffective for failing to impeach his girlfriend (mother of the victim) with her prior convictions because he could not show prejudice:

¶28 We agree with the postconviction court’s analysis. Even if trial counsel had impeached Bowie with the fact of her prior convictions, the jury still would have heard from the multiple witnesses who testified as to L.D.’s injuries, L.D.’s health history, Bowie’s care for her child, and Davis’s changing stories as to the possible causes of L.D.’s injuries. Counsel’s failure to impeach Bowie does not undermine our confidence in the outcome. Evidence of Bowie’s prior convictions would not have sufficiently undermined her credibility so as to alter the outcome of the trial. Accordingly, we conclude that Davis has not shown Strickland prejudice.

For more on the twilight zone, consider this recent William Mitchell Law Review article, which examines the lines between great bodily harm, substantial bodily harm, and bodily harm under Minnesota law, Wisconsin law, and the Model Penal Code.

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