State v. Jensen

• Decision Date: 07 July 2000
• Docket Number: No. 98-3175.,98-3175.
• Citation: 2000 WI 84,613 N.W.2d 170,236 Wis.2d 521
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Stephen L. JENSEN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

236 Wis.2d 521

2000 WI 84

613 N.W.2d 170

STATE of Wisconsin, Plaintiff-Respondent, v. Stephen L. JENSEN, Defendant-Appellant-Petitioner.

No. 98-3175.

Supreme Court of Wisconsin.

Oral argument March 17, 2000.

Decided July 7, 2000.

For the defendant-appellant-petitioner there was a brief and oral argument by James L. Fullin, assistant state public defender.

For the plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by Walter J. Dickey, Michael E. Smith, David Schultz and Ben Kempinen of the University of Wisconsin Law School.

¶ 1. DIANE S. SYKES, J.

This is a challenge to a conviction for first-degree reckless injury in a "shaken baby" case. The defendant, Stephen L. Jensen, does not deny that he vigorously shook his ten-week-old son, causing him to sustain severe and permanent disabilities. Rather, he argues that he is only guilty of second-degree reckless injury because the State did not prove the "utter disregard for human life" element of first degree reckless injury. Wis. Stat. § 940.23(1) (1993-94).¹

¶ 2. Jensen argues that in order to prove "utter disregard," the State must demonstrate his subjective awareness that shaking his son posed an extreme risk of death, and that it did not do so in this case. Jensen also argues that the circumstances of this case, involving the excessive use of disciplinary force, are insufficiently aggravated to meet the definition of "utter disregard for human life." Finally, Jensen argues that because he called 911 as soon as he realized his son was not breathing normally, he demonstrated enough regard for the child's life to preclude a finding of utter disregard.

¶ 3. Both the circuit court and the court of appeals concluded that the test for determining utter disregard for human life is an objective test that focuses on what a reasonable person in similar circumstances would have known. Both lower courts found the evidence sufficient to show utter disregard for human life under the objective test. We agree, and hold that the standard for utter disregard for human life is an objective one and that the State put in sufficient evidence to prove utter disregard in this case.

¶ 4. The undisputed facts are as follows. C.D., the victim, is the non-marital son of the defendant and Darlene D. He was born September 14, 1996. Shortly after Darlene discovered she was pregnant, she called Jensen to tell him that he was the father. Jensen wanted nothing to do with the child. However, when Darlene called him again a few weeks after the baby's birth, Jensen expressed a tentative interest in assuming some of the responsibilities of fatherhood. ¶ 5. Jensen began seeing his son periodically, and Darlene taught him how to care for the child. She told him that the baby was fragile and needed help holding his head up because his neck was weak. Jensen cared for the baby without Darlene's supervision on several occasions, including at least one instance in which the baby stayed overnight at Jensen's apartment.

¶ 6. On November 22, 1996, the evening of the crime, C.D. was ten weeks old and weighed approximately 12 pounds. Darlene left him at Jensen's apartment overnight. At around 4:30 a.m. on November 23, the baby woke up and began to cry. Jensen tried feeding him, but he refused the bottle and continued crying. Jensen testified that the crying was like a siren and was driving him "nuts" and making him angry. Jensen testified that he lost his temper and began yelling at the baby. He then grabbed the baby and shook him vigorously seven to 15 times. Jensen testified that he saw the baby's head repeatedly snap forward and hit his chest and then snap back, but he continued shaking him anyway. Jensen stopped only when the baby suddenly stopped crying. Jensen testified that he then noticed his son was having trouble breathing, waited about 30 seconds, and called 911.

¶ 7. Here is what he told the 911 operator:

I just had an accident with my son. He's just barely over 2 months old. I was coming out for a nighttime changing and that, and I tripped over the phone cord. We both went down. I held him close to me. He's breathing and that still, its just, I don't know, I'm not real sure that he's 100% okay.

A police car and an ambulance were dispatched to Jensen's apartment. Jensen told the same story to the police officer, and also remarked that he hoped the baby's neck had not been injured.

¶ 8. The baby was taken by ambulance to the hospital and barely survived the incident. According to Dr. William Perloff, the treating physician, the baby was having difficulty breathing and had very low blood pressure when he arrived at the hospital. Perloff discovered extensive bleeding behind the baby's eyes, and a CAT scan revealed severe cranial bleeding. Dr. Perloff also noted that the baby's "soft spot" had become hard because of the extremely high pressure in his brain. Dr. Perloff testified that the baby's injuries were similar in severity to those he might have incurred in a fall from a third-story window.

¶ 9. Jensen repeated his story about tripping over a telephone cord to Dr. Perloff, who recognized it as inconsistent with the severity of the baby's injuries. In the doctor's view, the injuries were consistent with Shaken Infant Syndrome, a form of nonaccidental trauma. While the baby was still in intensive care, Jensen fled to Florida, where he was apprehended several months later after a confidential informant turned him in. C.D. suffered profound, permanent injuries as a result of the attack, and is now blind, retarded, unable to walk and requires constant care.

¶ 10. Jensen was charged with first-degree reckless injury under Wis. Stat. § 940.23(1). He waived his right to a jury trial, and a bench trial was held in the Circuit Court for Dane County before the Honorable Patrick J. Fiedler. The defense stipulated to much of the case, so that the only issue at trial was whether the defendant acted with "utter disregard for human life."² The circuit court, after carefully considering a large body of case law, applied an objective test and concluded that any reasonable person would have recognized the danger of an adult male in his late twenties violently shaking a ten-week-old infant in a fit of anger. Jensen was sentenced to 16 years in prison.

¶ 11. Jensen appealed, arguing that the State was required to prove his subjective awareness that shaking his son posed an extreme risk of killing him in order to prove utter disregard for human life. The court of appeals upheld the conviction, also applying an objective test. State v. Jensen, No. 98-3175-CR, unpublished slip op. at 5-6 (September 2, 1999). The court concluded that it was not what Jensen knew, "but what a reasonable person in Jensen's position is presumed to have known" in determining the "utter disregard" element. Id. at 7. The court found the evidence sufficient to support the conviction under this objective test. Id. at 8.

[1, 2]

¶ 12. This case presents a question of statutory interpretation, which we review de novo. State v. Bodoh, 226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999). Our objective is to discern the intent of the legislature by relying on the plain language of the statute when possible and examining legislative history and statutory objectives if there is ambiguity. Id.

¶ 13. Jensen argues that the lower courts improperly applied an objective test to determine whether he acted with utter disregard for human life under Wis. Stat. § 940.23. Jensen asserts that "utter disregard for human life" refers to a subjective, conscious disregard of an extreme risk of death, which the State has not proven here.

¶ 14. We first turn to the language of the statute. Wisconsin Stat. § 940.23 provides:

940.23 Reckless injury. (1) First-degree reckless injury. Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class C felony.

(2) Second-degree reckless injury. Whoever recklessly causes great bodily harm to another human being is guilty of a Class D felony.

¶ 15. Wisconsin Stat. § 939.24 provides the definition of criminal recklessness, the required mental state for reckless injury under Wis. Stat. § 940.23:

939.24 Criminal Recklessness. (1) In this section, "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.

(2) Except as provided in ss. 940.285, 940.29 and 940.295, if criminal recklessness is an element of a crime in chs. 939 to 951, the recklessness is indicated by the term "reckless" or "recklessly."

The accompanying Judicial Council Note explains that criminal recklessness requires both the creation of an objectively risky situation (risk of death or great bodily harm), and also the actor's subjective awareness of that risk. Judicial Council Committee Note, 1988, § 939.24, Stats.

¶ 16. Jensen contends that utter disregard is essentially a part of the subjective mental state—the mens rea—of this crime, which must be proven on the basis of a subjective standard. We disagree. According to the plain language of the statute, criminal recklessness is the mens rea of this crime, possessing both subjective and objective components, as noted above. "Utter disregard for human life" is a separate element which, if the circumstances of the crime show it to be present, aggravates second-degree reckless injury to first-degree reckless injury.

¶ 17. Although "utter disregard for human life" clearly has something to do with mental state, it is not a sub-part of the intent element of this crime, and, as such, need not be subjectively proven. It can be (and often is) proven by evidence relating to the defendant's subjective state of mind—by the defendant's statements, for example,...