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Victim’s injuries provided sufficient factual basis for plea to first degree reckless injury

State v. Antonio Reyes-Ortiz, 2013AP268-CR, District 1, 11/26/13; court of appeals decision (not recommended for publication); case activity

Reyes-Ortiz argued there was an insufficient factual basis for his plea to first degree reckless injury because the victim’s injuries rose only to the level of “substantial bodily harm” under § 939.22(38), not “great bodily harm” under  § 939.22(14), as required by § 940.23(1)(a). The circuit court concluded the injuries inflicted by Reyes-Ortiz fell within the “or other serious bodily injury” language in § 939.22(14), relying on LaBarge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976), which held that language expanded the scope of the definition of “great bodily harm.” The court of appeals rejects the claim that LaBarge was overruled by the legislature’s subsequent enactment of the “substantial bodily harm” definition:

¶14      State v. Ellington, 2005 WI App 243, 288 Wis. 2d 264, 707 N.W.2d 907, however, decided long after the enactment of Wis. Stat. § 939.22(38), disproves Reyes-Ortiz’s argument.  Ellington reaffirmed LaBarge’s holding that the “other serious bodily injury” language in Wis. Stat. § 939.22(14) broadens what injuries may fall under the definition of “great bodily harm.”  Ellington, 2005 WI App 243, ¶¶7–8, 288 Wis. 2d 264, 274–276, 707 N.W.2d 907, 912. And this is also indicated by the series of “or”s separating the discrete ways a person may cause “great bodily harm” as defined by Wis. Stat. § 939.22(14). The legislature has not amended the statute after the Ellington decision, and thus, we presume it approves of our interpretation….

There was also sufficient factual basis for the element of utter disregard for human life, where Reyes-Ortiz: (1) drove after drinking; (2) drove in a “crazy” manner while threatening to kill himself and the victim; (3) sexually assaulted the victim; (4) repeatedly punched the victim forcefully enough to break her nose and eye socket, among other serious injuries; and (5) chased after her when she tried to escape. (¶16).

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