940.225 Annotation
One who has sexual contact or intercourse with a dead person cannot be charged with 1st- or 2nd-degree sexual assault, because the facts cannot correspond with the elements of those two charges. However, the possibility that the facts of a particular case will not come within the elements necessary to establish every crime listed in the statute does not mean the statute is absurd, but rather that the evidence necessary for all potential crimes under this section does not exist in all cases. State v. Grunke,
2008 WI 82,
311 Wis. 2d 439,
752 N.W.2d 769,
06-2744.
940.225 Annotation
Sub. (7) does not limit sub. (3) to only those circumstances in which the perpetrator kills and has sexual intercourse with the victim in a series of events. State v. Grunke,
2008 WI 82,
311 Wis. 2d 439,
752 N.W.2d 769,
06-2744.
940.225 Annotation
A prisoner participating in the home detention program under s. 302.425 remains at all times “confined,” that is to say imprisoned, in a jail. The fact that the prisoner is “detained” during the prisoner's participation in the program at a location other than a jail facility does not negate the fact that the prisoner remains confined in a correctional institution” for purposes of sub. (2) (h). State v. Hilgers,
2017 WI App 12,
373 Wis. 2d 756,
893 N.W.2d 261,
15-2256.
940.225 Annotation
Conviction on 2 counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel,
478 F. Supp. 752 (1979).
940.225 Annotation
A conviction for attempted 1st-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell,
478 F. Supp. 1264 (1979).
940.23
940.23
Reckless injury. 940.23(1)(a)(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.
940.23(1)(b)
(b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class D felony.
940.23(2)(a)
(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.
940.23(2)(b)
(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class F felony.
940.23 Note
Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
940.23 Note
Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
940.23 Annotation
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman,
185 Wis. 2d 405,
518 N.W.2d 257 (Ct. App. 1994).
940.23 Annotation
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z.
228 Wis. 2d 468,
596 N.W.2d 490 (Ct. App. 1999),
96-2797.
940.23 Annotation
Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen,
2000 WI 84,
236 Wis. 2d 521,
613 N.W.2d 170,
98-3175.
940.23 Annotation
Utter disregard requires more than a high degree of negligence or recklessness. To evince utter disregard, the mind must not only disregard the safety of another but be devoid of regard for the life of another. A person acting with utter disregard must possess a state of mind that has no regard for the moral or social duties of a human being. State v. Miller,
2009 WI App 111,
320 Wis. 2d 724,
772 N.W.2d 188,
07-1052.
940.23 Annotation
In evaluating whether there is sufficient proof of utter disregard for human life, factors to be considered include the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim's injuries, and the degree of force that was required to cause those injuries. Also considered are the type of victim and the victim's age, vulnerability, fragility, and relationship to the perpetrator, as well as whether the totality of the circumstances showed any regard for the victim's life. State v. Miller,
2009 WI App 111,
320 Wis. 2d 724,
772 N.W.2d 188,
07-1052.
940.23 Annotation
Pointing a loaded gun at another is not conduct evincing utter disregard if it is otherwise defensible, even if it is not privileged. When conduct was to protect the defendant and his friends, although not found to be self defense, the conduct is inconsistent with conduct evincing utter disregard. State v. Miller,
2009 WI App 111,
320 Wis. 2d 724,
772 N.W.2d 188,
07-1052.
940.23 Annotation
Jensen does not create a rule assigning less weight to a defendant's after-the-fact conduct. When evaluating whether a defendant's conduct reflects utter disregard for human life, the fact-finder should examine the totality of the circumstances surrounding the crime, considering all relevant conduct before, during, and after a crime, giving each the weight it deems appropriate under the circumstances. State v. Burris,
2011 WI 32,
333 Wis. 2d 87,
797 N.W.2d 430,
09-0956.
940.235
940.235
Strangulation and suffocation. 940.235(1)(1)
Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony.
940.235(2)
(2) Whoever violates sub.
(1) is guilty of a Class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in s.
939.632 (1) (e) 1. 940.235 History
History: 2007 a. 127.
940.24
940.24
Injury by negligent handling of dangerous weapon, explosives or fire. 940.24(1)(1)
Except as provided in sub.
(3), whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
940.24(2)
(2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
940.24(3)
(3) Subsection
(1) does not apply to a health care provider acting within the scope of his or her practice or employment.
940.24 Note
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]
940.24 Annotation
Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh,
226 Wis. 2d 718,
595 N.W.2d 330 (1999),
97-0495.
940.25
940.25
Injury by intoxicated use of a vehicle. 940.25(1)(1)
Any person who does any of the following is guilty of a Class F felony:
940.25(1)(a)
(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(am)
(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.25(1)(b)
(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s.
340.01 (46m).
940.25(1)(bm)
(bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
940.25(1)(c)
(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(cm)
(cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.25(1)(d)
(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s.
340.01 (46m).
940.25(1)(e)
(e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
940.25(1d)
(1d) A person who violates sub.
(1) is subject to the requirements and procedures for installation of an ignition interlock device under s.
343.301.
940.25(1m)(a)(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub.
(1) (a),
(am), or
(b); any combination of sub.
(1) (a),
(am), or
(bm); any combination of sub.
(1) (c),
(cm), or
(d); or any combination of sub.
(1) (c),
(cm), or
(e) for acts arising out of the same incident or occurrence.
940.25(1m)(b)
(b) If a person is charged in an information with any of the combinations of crimes referred to in par.
(a), the crimes shall be joined under s.
971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s.
23.33 (13) (b) 2. and
3., under s.
23.335 (23) (c) 2. and
3., under s.
30.80 (6) (a) 2. or
3., under ss.
343.30 (1q) and
343.305 or under s.
350.11 (3) (a) 2. and
3. Subsection
(1) (a),
(am),
(b),
(bm),
(c),
(cm),
(d), and
(e) each require proof of a fact for conviction which the others do not require.
940.25(2)(a)(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub.
(1) (b),
(bm),
(d) or
(e).
940.25(2)(b)
(b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
940.25 History
History: 1977 c. 193,
272;
1981 c. 20,
184;
1983 a. 459;
1985 a. 331;
1987 a. 399;
1989 a. 105,
275,
359;
1991 a. 277;
1993 a. 317,
428,
478;
1995 a. 425,
436;
1997 a. 237,
295;
1999 a. 32,
109,
186;
2001 a. 16,
109;
2003 a. 30,
97;
2005 a. 253;
2009 a. 100;
2015 a. 170.
940.25 Annotation
The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff,
114 Wis. 2d 402,
338 N.W.2d 466 (1983).
940.25 Annotation
The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk,
154 Wis. 2d 294,
453 N.W.2d 163 (1990).
940.25 Annotation
The offense under sub. (1) (am) has 2 elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in his or her blood; and 2) the defendant's operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieves the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner,
2006 WI App 92,
292 Wis. 2d 682,
715 N.W.2d 720,
05-1372.
940.25 Annotation
The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that he or she is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner,
2006 WI App 92,
292 Wis. 2d 682,
715 N.W.2d 720,
05-1372.
940.25 Annotation
“Materially impaired" as used in the definition of “under the influence of an intoxicant" in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard,
2008 WI 92,
313 Wis. 2d 1,
752 N.W.2d 839,
06-2753.
940.285
940.285
Abuse of individuals at risk. 940.285(1)(ag)6.
6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.
940.285(1)(dg)
(dg) “Individual at risk" means an elder adult at risk or an adult at risk.
940.285(1)(dm)
(dm) “Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
940.285(1m)
(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.
940.285(2)(a)
(a) Any person, other than a person in charge of or employed in a facility under s.
940.29 or in a facility or program under s.
940.295 (2), who does any of the following may be penalized under par.
(b):
940.285(2)(b)1g.1g. Any person violating par.
(a) 1. or
2. under circumstances that cause death is guilty of a Class C felony. Any person violating par.
(a) 3. under circumstances that cause death is guilty of a Class D felony.
940.285(2)(b)1m.
1m. Any person violating par.
(a) under circumstances that cause great bodily harm is guilty of a Class F felony.
940.285(2)(b)1r.
1r. Any person violating par.
(a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par.
(a) 2. or
3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
940.285(2)(b)2.
2. Any person violating par.
(a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par.
(a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
940.285(2)(b)4.
4. Any person violating par.
(a) 2. or
3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
940.285(2)(b)5.
5. Any person violating par.
(a) 1.,
2. or
3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
940.29
940.29
Abuse of residents of penal facilities. Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class I felony.
940.291
940.291
Law enforcement officer; failure to render aid. 940.291(1)(1)
Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.
