940.225 AnnotationConviction on two 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 AnnotationA conviction for attempted first-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F. Supp. 1264 (1979).
940.23940.23Reckless injury.
940.23(1)(1)First-degree 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)(2)Second-degree reckless injury.
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 HistoryHistory: 1987 a. 399; 1997 a. 295; 2001 a. 109.
940.23 NoteJudicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
940.23 NoteSub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
940.23 AnnotationFirst-degree reckless injury, sub. (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 AnnotationSub. (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 AnnotationUtter 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 AnnotationUtter 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 AnnotationIn 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 AnnotationPointing 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 the defendant’s 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 AnnotationJensen, 2000 WI 84, 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.
940.235940.235Strangulation 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 HistoryHistory: 2007 a. 127.
940.24940.24Injury 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 HistoryHistory: 1977 c. 173; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.
940.24 NoteJudicial 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]