State v. Alan M. Johnson

2021 WI 61

• Court: Wisconsin Supreme Court
• Decided: June 16, 2021
• Docket: 2018AP002318-CR
• Status: Published

Opinion

2021 WI 61

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP2318-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Alan M. Johnson, Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 393 Wis. 2d 688, 948 N.W.2d 377 PDC No:2020 WI App 50 - Published

OPINION FILED: June 16, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 19, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Walworth JUDGE: Kristine E. Drettwan

JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30-48. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant, there was a brief filed by Catherine E. White, Stephen P. Hurley, Jonas B. Bednarek, Marcus J. Berghahn and Hurley Burish, S.C., Madison. There was an oral argument by Catherine E. White.

For the plaintiff-respondent-petitioner, there were briefs filed by Timothy M. Barber, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Timothy M. Barber. 2021 WI 61 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP2318-CR (L.C. No. 2016CF422)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED v. JUN 16, 2021 Alan M. Johnson, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant.

HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30- 48.

REVIEW of a decision of the Court of Appeals. Affirmed in

part, reversed in part.

¶1 BRIAN HAGEDORN, J. In the middle of the night, Alan M.

Johnson snuck into the home of his brother-in-law (K.M.) seeking

evidence of child pornography. Johnson brought a gun. After

searching K.M.'s computer for more than two hours, K.M. appeared

in the doorway and saw Johnson. K.M. shut the door, as Johnson described it, and then burst through the door and attacked. The No. 2018AP2318-CR

ensuing altercation left K.M. dead; he was shot five times. A

jury found Johnson guilty of first-degree reckless homicide.

Johnson appealed his conviction, and the court of appeals ruled in

his favor and ordered a new trial.1

¶2 Three issues are presented for our review. First, did

the circuit court2 err in failing to instruct the jury on perfect

self-defense? Second, did the circuit court err in failing to

instruct the jury on the lesser included offense of second-degree

reckless homicide? And finally, did the circuit court err in

precluding Johnson from offering evidence regarding what he found

on K.M.'s computer the night of K.M.'s death? The court of appeals

ruled in Johnson's favor on all three questions.

¶3 We agree the circuit court erred in failing to instruct

the jury on perfect self-defense and second-degree reckless

homicide. When determining whether these instructions should be

provided, the evidence is viewed in the light most favorable to

the defendant, and the instruction must be provided if evidence is

presented from which a reasonable jury could find in the defendant's favor on the instructed elements. The evidence

presented at trial was sufficient to satisfy this low evidentiary

bar. We affirm the decision of the court of appeals on these

grounds and remand for a new trial.

State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 1

N.W.2d 377.

The Honorable Kristine E. Drettwan, Walworth County Circuit 2

Court, presiding.

2 No. 2018AP2318-CR

¶4 However, we conclude the circuit court properly

exercised its discretion in precluding Johnson from testifying

regarding what he found on K.M.'s computer that night. The circuit

court concluded this other-acts evidence was not relevant, and

even if it was, the probative value of the evidence would be

substantially outweighed by the danger of unfair prejudice. While

another court might see it differently, this was a permissible and

reasonable conclusion, particularly since Johnson was permitted to

testify regarding why he was at K.M.'s house and that he "found"

what he was looking for. Accordingly, we reverse the decision of

the court of appeals on this ground.

I. BACKGROUND

¶5 Johnson testified in his own defense at trial. His

testimony is the only narrative the jury heard of what happened

the night K.M. died. Since our review is largely centered on a

view of the evidence most favorable to Johnson, his testimony forms

the substantial basis of our analysis. The following is Johnson's side of the story.

¶6 Johnson's oldest sister married K.M. when Johnson was a

child; his relationship with K.M. was strained from the beginning.

Johnson feared K.M. from the age of ten onward. Repeatedly, K.M.

verbally and physically abused Johnson, and on one occasion,

sexually abused him. Johnson also witnessed K.M. physically abuse

his youngest sister and K.M.'s son.

3 No. 2018AP2318-CR

¶7 Years prior to K.M.'s death, Johnson discovered what he

believed was child pornography on K.M.'s computer.3 Eventually,

Johnson reported this to the authorities, but was told that the

evidence was "stale." Johnson then told his father, who confronted

K.M. K.M. told Johnson's father the pornography was "moved."

Despite several requests by Johnson's father to attend therapy,

K.M. never went. This caused Johnson to fear for the safety of

his nieces.

¶8 Around 11:45 p.m. on the night of October 24, 2016,

Johnson went to K.M.'s home intending to discover "fresh pictures"

of child pornography on K.M.'s computer to deliver to the police.

Johnson believed that K.M. could overpower him if anything

happened, so he brought a gun to protect himself. He entered

through the unlocked back door and proceeded to the computer room.

Johnson closed the door and searched K.M.'s computer for over two

hours. As a result of his search, Johnson intended to turn what

he discovered over to the police because he "found what they

needed." ¶9 After the calendar flipped to October 25, at around 2:00

a.m., Johnson heard a "scuff" from somewhere in the house. Then,

in Johnson's words: "I closed the Windows that I had opened on

the computer . . . and I got up, I grabbed the gun. I got

everything that I had with me." As he was leaving, the door opened

Johnson testified that his sister, KM's wife, asked him to 3

find a file she downloaded on KM's computer. While attempting to locate the missing file, Johnson found what he believed was child pornography.

4 No. 2018AP2318-CR

and Johnson saw K.M. standing in the doorway without a shirt. K.M.

then closed the door, leaving Johnson alone in the room. Johnson

was afraid. When K.M. opened the door, "[h]e looked right at me,

and he knew why I was there. I knew that he knew." Johnson wanted

to leave, but the only exit was the door K.M. had just shut. He

did not believe the windows in the room opened either, leaving him

no way to escape. Then, Johnson explained, "the door flew open

and [K.M.] attacked me. He just came right at me." And upon

further probing, Johnson said, "[K.M.] lunged at me. I saw him

come at me." When all was said and done, K.M. sustained five

gunshot wounds and died. Exactly how this transpired was unclear

even to Johnson. While he knew he shot K.M., Johnson did not

remember seeing or hearing his gun fire and does not remember how

he left the house.

¶10 Johnson denied knowing how K.M. died when questioned on

two occasions later that day. But before the day ended, he

confessed to killing K.M. Johnson was charged with first-degree

intentional homicide, use of a dangerous weapon, and armed burglary.

¶11 During pretrial, Johnson moved to admit other-acts and

McMorris evidence4 regarding K.M.'s past actions to support his

4 "Evidence of a victim's violent character and past violent acts is often referred to as McMorris evidence." State v. Head, 2002 WI 99, ¶24 n.5, 255 Wis. 2d 194, 648 N.W.2d 413. The phrase refers to McMorris v. State, where this court noted when "the issue of self-defense is sufficiently raised" evidence of the victim's "dangerous character or reputation" "is relevant in determining whether the victim or the accused was the aggressor." 58 Wis. 2d 144, 149, 205 N.W.2d 559 (1973).

5 No. 2018AP2318-CR

claim of self-defense. The circuit court permitted Johnson to

introduce evidence of K.M.'s past abusive conduct and evidence

that Johnson previously found what he believed was child

pornography on K.M.'s computer. However, the court prohibited

Johnson from presenting evidence of precisely what he believed he

found on K.M.'s computer the night K.M. died: images of naked

underage girls and over 5,000 images of neighborhood girls.5 The

court ruled that such evidence, regardless of whether it was child

pornography, "is not relevant to the homicide, to any claim of

self-defense or to the burglary charge." Furthermore, the court

noted that even if this evidence was relevant, "it would fail under

[Wis. Stat. §] 904.03" because "[i]t would be completely and

unfairly prejudicial with little to no probative value other than

to try and paint the victim in a bad light, and it certainly would

not . . . substantially outweigh that unfair prejudice."

¶12 At the close of evidence, the circuit court instructed

the jury on burglary, first-degree intentional homicide, second-

degree intentional homicide, first-degree reckless homicide, and imperfect self-defense. Johnson also requested, without success,

instructions on perfect self-defense, second-degree reckless

homicide, and homicide by negligent use of a firearm. The circuit

court refused to instruct on perfect self-defense because it

Johnson made an offer of proof that he would testify to this 5

effect, providing more specifics with respect to the images he viewed that night. Johnson made an additional offer of proof that a computer analyst would testify to discovering images on the computer that to a lay person would appear to be child pornography.

6 No. 2018AP2318-CR

determined no reasonable person could conclude that Johnson

satisfied either prong of the perfect self-defense standard. And

the court did not instruct on second-degree reckless homicide on

the grounds that Johnson's actions conclusively showed an utter

disregard for human life.6

¶13 The jury found Johnson guilty of first-degree reckless

homicide while armed with a dangerous weapon and not guilty of

burglary. Johnson was sentenced to 25 years of confinement and 10

years of extended supervision.

¶14 Johnson appealed, and the court of appeals reversed and

remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52,

393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded

"the circuit court erred in denying Johnson's request to instruct

homicide and failed to allow into evidence that child pornography

was found on K.M.'s computer."7 Id. We granted the State's

petition for review.

II. DISCUSSION

¶15 This case presents three issues. Two concern

instructions not provided to the jury, and the third considers the

6The circuit court reasoned that Johnson "brought the loaded gun there, and that he was aware that his conduct created that unreasonable and substantial risk of death or bodily harm." 7The court of appeals affirmed the circuit court's decision not to instruct on homicide by negligent handling of a dangerous weapon. Johnson, 393 Wis. 2d 688, ¶42. This issue is not before us.

7 No. 2018AP2318-CR

other-acts evidence Johnson sought to introduce regarding the

contents of K.M.'s computer on the night of his death. We begin

with the jury instructions.

A. Jury Instructions

1. Standard of Review

¶16 "A circuit court has broad discretion in deciding

whether to give a requested jury instruction." State v. Coleman,

206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). The circuit court's

charge is "to fully and fairly inform the jury of the rules of law

applicable to the case and to assist the jury in making a

reasonable analysis of the evidence." State v. Vick, 104

Wis. 2d 678, 690, 312 N.W.2d 489 (1981) (quoting another source).

But circuit court discretion is far more limited in some

circumstances——including determining whether the evidence

presented supports instructing the jury on either perfect self-

defense or a lesser-included offense; these are questions of law

we review de novo.8 State v. Peters, 2002 WI App 243, ¶12, 258 Wis. 2d 148, 653 N.W.2d 300; State v. Fitzgerald, 2000 WI App 55,

¶7, 233 Wis. 2d 584, 608 N.W.2d 391.

¶17 "A jury must be instructed on self-defense when a

reasonable jury could find that a prudent person in the position

of the defendant under the circumstances existing at the time of

the incident could believe that he was exercising the privilege of

8To the extent any statutes are interpreted and applied to this end, that review is also de novo. Quick Charge Kiosk LLC v. Kaul, 2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.

8 No. 2018AP2318-CR

self-defense." State v. Stietz, 2017 WI 58, ¶15, 375 Wis. 2d 572,

895 N.W.2d 796. We recently described this benchmark as a low bar

which only requires the accused to produce some evidence to support

the proposed instruction. Id., ¶16. This standard is met even if

the evidence is "weak, insufficient, inconsistent, or of doubtful

credibility." Id., ¶17 (quoting another source). Furthermore,

circuit courts must not weigh the evidence; rather, the evidence

must be viewed in the light most favorable to the defendant.

Id., ¶¶13, 18. The instruction should be given based on this low

modicum of evidence "unless the evidence is rebutted by the

prosecution to the extent that 'no rational jury could entertain

a reasonable doubt.'" State v. Schuman, 226 Wis. 2d 398, 404, 595

N.W.2d 86 (Ct. App. 1999) (quoting another source).

¶18 Similarly, a lesser-included offense instruction should

be provided if "a jury giving the evidence full credence could

reasonably return a verdict of guilt on the lesser included

offense." Ross v. State, 61 Wis. 2d 160, 173, 211 N.W.2d 827

(1973). In making this determination, "all relevant and appreciable evidence is viewed in a light most favorable to the

defendant." State v. Davis, 144 Wis. 2d 852, 855, 425 N.W.2d 411

(1988). Failure "to instruct on an issue which is raised by the

evidence" is error. State v. Weeks, 165 Wis. 2d 200, 208, 477

N.W.2d 642 (Ct. App. 1991) (quoting another source).

2. Perfect Self-Defense

¶19 The statutes define two types of self-defense: perfect and imperfect. Imperfect self-defense is an affirmative defense 9 No. 2018AP2318-CR

to first-degree intentional homicide. Wis. Stat. § 940.01(2)(b)

(2019-20).9 It is aptly named because, when successful, it reduces

a charge of first-degree intentional homicide to second-degree

intentional homicide and therefore does not function as a complete

(perfect) defense to a homicide charge. Id. The circuit court

gave an imperfect self-defense instruction here.

¶20 Johnson contends the circuit court should have given a

perfect self-defense instruction as well. Wisconsin Stat.

§ 939.48(1) provides the requirements:

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. Thus, to receive this instruction, Johnson had to make an objective

threshold showing that (1) he reasonably believed he was preventing

9 Under Wis. Stat. § 940.01(2)(b), imperfect self-defense is available when, "Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable." § 940.01(2)(b). If these conditions are met, the defendant could be convicted of second-degree, rather than first-degree, intentional homicide. § 940.01(2); see also Wis. Stat. § 940.05(3) (noting imperfect self-defense is not an affirmative defense to second-degree intentional homicide).

All subsequent references to the Wisconsin Statutes are to the 2019-20 version.

10 No. 2018AP2318-CR

or terminating an unlawful interference with his person, and (2)

he intentionally used only the force he reasonably believed was

necessary to terminate that interference. State v. Head, 2002

WI 99, ¶4, 255 Wis. 2d 194, 648 N.W.2d 413. Additionally, because

he intentionally used force intended or likely to cause great

bodily harm or death, Johnson needed to also show he reasonably

believed the force he used was necessary to prevent great bodily

harm or imminent death to himself. "Unlawful" in § 939.48 is

defined as conduct that is "either tortious or expressly prohibited

by criminal law or both." § 939.48(6).

¶21 The question here is whether "a reasonable jury could

find that a prudent person in the position of [Johnson] under the

circumstances existing at the time of the incident could believe"

these conditions were met. Stietz, 375 Wis. 2d 572, ¶15. If some

evidence from which a jury could so find was presented, the

instruction should have been given.10

¶22 First, Johnson must show some evidence that he

reasonably believed he was preventing or terminating an unlawful interference with his person. Stated another way, we must

determine if some evidence was presented from which a jury could

find that Johnson reasonably believed he was preventing K.M. from

10The dissent states we apply an incorrect standard of law by examining the reasonableness of Johnson's beliefs. Dissent, ¶59 & n.6. However, that is exactly what the statute says to do, and exactly what our cases confirm——including those cited by the dissent. See State v. Stietz, 2017 WI 58, ¶68, 375 Wis. 2d 572, 895 N.W.2d 796 (discussing the defendant's reasonable belief); Head, 255 Wis. 2d 194, ¶¶66-67 (same).

11 No. 2018AP2318-CR

harming him without lawful authority to do so. We agree with the

court of appeals that the evidence could support such a conclusion.

¶23 Johnson testified that he was not looking for a

confrontation with K.M. But when K.M. showed up and closed the

door to the computer room, Johnson was left alone in the room with

no means of escape, believing K.M. knew precisely why he was there.

K.M. then flung the door open and attacked, lunging at Johnson.

Even granting the unusual circumstance of seeing an unwelcome

family member in one's home in the middle of the night, a

reasonable jury could conclude that K.M. engaged in an unprovoked

physical attack on his brother-in-law to harm and possibly kill

him. The jury knew that K.M. had previously been physically

violent with Johnson, and that past history could lend credibility

to Johnson's version of events, especially a need to defend himself

with lethal force. A reasonable jury could conclude that Johnson

reasonably believed K.M.'s attack on him was an unlawful

interference with his person.11

Our 11 self-defense laws also establish a statutory presumption that a homeowner may use lethal force against unlawful or forcible entry into the home, commonly called the castle doctrine. Wis. Stat. § 939.48(1m)(ar). The dissent concludes the castle doctrine should apply to KM's actions, meaning KM lawfully attacked Johnson. Dissent, ¶69. However, we need not determine the scope and meaning of the castle doctrine to rule on the issues before us because we are examining Johnson's, not KM's, actions. Rather, we conclude there is some evidence from which a jury could find that Johnson reasonably believed he was being unlawfully interfered with. The substance and applicability of the castle doctrine does not change or alter that conclusion, and therefore exploring it is unnecessary to decide this case. Nothing in this opinion interprets, applies, or limits the castle doctrine in any way.

12 No. 2018AP2318-CR

¶24 Next, Johnson must also present some evidence from which

a reasonable jury could conclude he intentionally used only the

force he reasonably believed was necessary to terminate the

interference with his person. Because Johnson used force intended

or likely to cause death or great bodily harm——he shot K.M. five

times——he must present some evidence that he reasonably believed

this force was necessary to prevent great bodily harm or imminent

death to himself. "[T]he personal characteristics and histories

of the parties" are relevant to this determination. State v.

Jones, 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989).

¶25 As we've discussed, Johnson testified that K.M.

physically, verbally, and sexually abused him, and physically

abused his younger sister, starting when they were both young.

And Johnson testified that on the night in question, K.M. opened

the door, recognized him, and knew why he was there. He then

closed the door, and then reopened the door to lunge at Johnson

and attack him. From this, the jury could conclude K.M. initiated

a violent altercation with Johnson, possibly because he knew Johnson was looking for evidence of child pornography. These facts

could be read to provide a motive and historical pattern to

substantiate a conclusion that Johnson reasonably believed his

life was in danger from K.M.'s attack. Even though Johnson did

not recall the details of the physical altercation that led to

K.M.'s death, a jury could infer that Johnson intentionally used

only the force he reasonably believed would prevent an unlawful

interference with his person and that deadly force was necessary

13 No. 2018AP2318-CR

to prevent great bodily harm or imminent death.12 Even though

Johnson was not able to describe what happened in detail and why

he made the decisions he did when the attack began, a reasonable

jury could still infer that Johnson responded with the level of

force necessary to stop the attack.

¶26 In sum, we conclude the circuit court erred by declining

to instruct on perfect self-defense. Viewing the evidence in the

light most favorable to Johnson, there is some evidence from which

a reasonable jury could conclude he had an objectively reasonable

belief that he was preventing an unlawful interference with his

person and that he used only force which was necessary to prevent

imminent death or great bodily harm. Because Johnson was entitled

to receive the perfect self-defense instruction, we affirm the

court of appeals' decision on this issue.13

3. Second-Degree Reckless Homicide

¶27 With respect to the homicide charge against Johnson, the

circuit court instructed the jury on first-degree intentional homicide, second-degree intentional homicide, and first-degree

reckless homicide. The court of appeals concluded that the circuit

12 We reiterate that a jury could also reach the opposite result. Our focus is merely on whether a jury could conclude Johnson acted in perfect self-defense, not that it would or should reach that conclusion. 13The privilege of self-defense may also be limited when the person claiming self-defense provoked the initial attack. See Wis. Stat. § 939.48(2)(a). The circuit court instructed the jury on provocation, a decision not challenged before us.

14 No. 2018AP2318-CR

court should also have instructed the jury on second-degree

reckless homicide, and the State challenges that conclusion before

us. If a party requests submission of a lesser included offense,

as Johnson did here, the court should instruct the jury if "there

are reasonable grounds in the evidence both for acquittal on the

greater charge and conviction on the lesser offense." Fitzgerald,

233 Wis. 2d 584, ¶7 (quoting another source).

¶28 A person who "recklessly causes the death of another

human being under circumstances which show utter disregard for

human life" is guilty of first-degree reckless homicide. Wis.

Stat. § 940.02(1). Second-degree reckless homicide, meanwhile,

occurs when someone "recklessly causes the death of another human

being." Wis. Stat. § 940.06(1). The only difference is that

"utter disregard for human life" is a required element for first-

degree, but not second-degree, reckless homicide. The parties

agree that second-degree reckless homicide is a lesser-included

offense of first-degree reckless homicide. This means that someone

who commits first-degree reckless homicide commits the second- degree offense as well. See State v. Weso, 60 Wis. 2d 404, 408,

210 N.W.2d 442 (1973) (noting that an offense is lesser-included

when the defendant "could be convicted of the lesser crime even

though he had been charged with and pleaded not guilty to the

greater crime").

¶29 "[U]tter disregard for human life is measured

objectively, on the basis of what a reasonable person in the

defendant's position would have known." State v. Jensen, 2000 WI 84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170. "A person acting 15 No. 2018AP2318-CR

with utter disregard must possess 'a state of mind which has no

regard for the moral or social duties of a human being.'" State

v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188

(quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331

(1977)). Utter disregard for human life is interpreted

"consistent[ly] with previous interpretations of the 'depraved

mind' element that it replaced." Jensen, 236 Wis. 2d 521, ¶18.

This court has explained:

To constitute a depraved mind, more than a high degree of negligence or recklessness must exist. The mind must not only disregard the safety of another but be devoid of regard for the life of another. . . . A depraved mind lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment. A depraved mind has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm. Weso, 60 Wis. 2d at 411-12. In analyzing whether the defendant

acted with utter disregard for human life, the factfinder examines

the "totality of the circumstances" including the time before,

during, and after the crime.14 State v. Burris, 2011 WI 32, ¶¶38-

39, 41, 333 Wis. 2d 87, 797 N.W.2d 430.

14When examining the totality of the circumstances, factors that may 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. We also consider the type of victim, the victim's age, vulnerability, fragility, and relationship to the perpetrator. And finally, we consider whether the totality of the circumstances showed any regard for the victim's life.

16 No. 2018AP2318-CR

¶30 Here, evidence was presented that could lead a

reasonable jury to conclude that Johnson's actions did not

constitute utter disregard for human life. In his telling, Johnson

brought a gun with him for his protection——not to attack K.M. And

Johnson combed through K.M.'s computer for two hours without

alerting the occupants of the home to his presence. A jury could

conclude that Johnson brought the gun intending to use it only if

necessary for self-defense, and that his intent was to obtain the

evidence he was looking for and leave without K.M. ever knowing he

was there. And again, a jury could conclude it was K.M. that

instigated a life or death situation by commencing a surprise

attack.15

¶31 Reading the evidence in the light most favorable to

Johnson, there is evidence that he acted in fear for his own life,

not necessarily with utter disregard for K.M.'s life.16 Based on

State v. Jensen, 2000 WI 84, ¶24, 236 Wis. 2d 521, 613 N.W.2d 170 (quoting another source). 15Certainly there is evidence that could cause a jury to conclude otherwise——Johnson does not recall how he left the computer room or bypassed KM, or the details of how he shot KM five times. 16The court of appeals reached the same conclusion, but reasoned that Johnson's conduct searching for child pornography for the safety of his nieces demonstrates "a regard for the life, safety, and well-being of others." Johnson, 393 Wis. 2d 688, ¶40. In our view, however, the proper inquiry is whether a defendant showed regard for human life with respect to those present during the events in question. See, e.g., Balistreri v. State, 83 Wis. 2d 440, 457-58, 265 N.W.2d 290 (1978) (determining the defendant did not have a "depraved mind" where he attempted to avoid a collision by swerving his car, honking his horn, and braking); State v. Miller, 2009 WI App 111, ¶42, 320 Wis. 2d 724,

17 No. 2018AP2318-CR

this evidence, we conclude that the circuit court should have

instructed the jury on second-degree reckless homicide as well.

We affirm the decision of the court of appeals on this issue.17

B. Other-Acts Evidence

¶32 Finally, the court of appeals held that the circuit court

impermissibly excluded other-acts evidence of what Johnson found

on K.M.'s computer on the night of K.M.'s death. Under the rules

of evidence, "evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

that the person acted in conformity therewith." Wis. Stat.

772 N.W.2d 188 (determining there was no utter disregard for human life when the defendant did not engage physically after being struck, offered help, fired a shot only after the threats became imminent, and called 911 to report the shooting and asked if the victim would be okay). 17 The State does not argue that the circuit court's failure to instruct on perfect self-defense and second-degree reckless homicide was harmless. We agree that it was not. The jury convicted Johnson of first-degree reckless homicide but acquitted him on charges of first-degree intentional homicide, second-degree intentional homicide, and burglary. This suggests the jury believed at least some of Johnson's testimony. Had the perfect self-defense and second-degree reckless homicide instructions been given, the jury might have concluded either of these standards applied and reached a different outcome. Therefore, the circuit court's decision not to provide these instructions was not harmless, and Johnson is entitled to a new trial on remand. See Wis. Stat. § 805.18(2) (directing the court to determine if the error "affected the substantial rights of the party"); Stietz, 375 Wis. 2d 572, ¶63 ("A defendant's substantial rights remain unaffected (that is, the error is harmless) if it is clear beyond a reasonable doubt that a rational jury would have come to the same conclusion absent the error or if it is clear beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.").

18 No. 2018AP2318-CR

§ 904.04(2)(a). We use a three-step analytical framework to

ascertain the admissibility of other-acts evidence:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?

(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.

(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03. State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)

(footnote omitted). ¶33 Johnson contends this evidentiary decision should be

reviewed de novo because it implicates his constitutional right to

present a defense. We disagree. Outside of certain constitutional

commands,18 a circuit court's day-to-day decisions applying the

rules of evidence will only rarely contain a constitutional

dimension. "The rights to confront witnesses and to defend

18The prohibition against unreasonable searches and seizures, for example, raises different questions than ordinary decisions under the rules of evidence to admit or exclude evidence.

19 No. 2018AP2318-CR

are . . . not absolute and may bow to accommodate other legitimate

interests in the criminal trial process," including the rules of

evidence. State v. DeSantis, 155 Wis. 2d 774, 793, 456 N.W.2d 600

(1990). As the United States Supreme Court has explained:

State and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting

another source); see also State v. St. George, 2002 WI 50, ¶¶50-

51, 252 Wis. 2d 499, 643 N.W.2d 777 (explaining the "accused's

right to present evidence is subject to reasonable restrictions"

under the rules of evidence). Evidentiary questions of the type

raised here——whether evidence is relevant or prejudicial under an

other-acts inquiry——are therefore almost always properly reviewed

for an erroneous exercise of discretion. DeSantis, 155 Wis. 2d at

793-94. We see no reason to depart from this longstanding

appellate rule in this case.

¶34 Under this manner of review, we examine whether "the

circuit court applied the proper legal standard to the relevant

facts and reached a reasonable discretionary decision." State v.

Gutierrez, 2020 WI 52, ¶27, 391 Wis. 2d 799, 943 N.W.2d 870. If

it did so, its decision is upheld. Id. And while the court of

appeals clearly believed the evidence cut the other way, an

appellate court "may not substitute its discretion for that of the

circuit court." Id. (quoting another source). Rather, we "look

20 No. 2018AP2318-CR

for reasons to sustain a trial court's discretionary decision."

Id. (quoting another source).

¶35 The circuit court excluded this evidence on the grounds

that it was not relevant and that its probative value would be

substantially outweighed by its prejudicial effect under Wis.

Stat. § 904.03.19 Putting aside the circuit court's conclusion

that what was found that night was not relevant, it was certainly

within the circuit court's discretion to conclude the danger of

unfair prejudice substantially outweighed any possible relevance.

The circuit court expressed its concern that introduction of this

evidence could mislead the jury or cause them to focus on K.M.'s

potential criminal behavior related to child pornography rather

than the circumstances surrounding his death. Moreover, the court

was worried about a trial within a trial regarding whether certain

pictures constituted child pornography or not, possibly

distracting the jury from the real issues in the case. And while

Johnson was not permitted to present direct evidence of what he

found on K.M.'s computer, Johnson did testify that he went to the house to look for child pornography and that he believed he found

what the police needed.

¶36 This evidentiary decision was a quintessential judgment

call of the type we rely on circuit courts to make every day. And

whether we would have made the same decision or not, it was a

19 Wis. Stat. § 904.03 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

21 No. 2018AP2318-CR

reasonable call within the bounds of the law. The court of

appeals' decision on this issue is reversed.

III. CONCLUSION

¶37 We conclude the circuit court erred by failing to

instruct the jury on perfect self-defense and second-degree

reckless homicide. We affirm the court of appeals on these issues,

and agree that Johnson is entitled to a new trial on remand.20

However, the circuit court properly exercised its discretion in

denying the admission of the other-acts evidence; we reverse the

court of appeals' decision on this issue.

By the Court.—The decision of the court of appeals is affirmed

in part and reversed in part, and the cause is remanded to the

circuit court for further proceedings consistent with this

opinion.

20The jury found Johnson guilty of first-degree reckless homicide, acquitted Johnson of burglary, and did not return a verdict on first- and second-degree homicide, greater offenses of first-degree reckless homicide, which served as an "implicit acquittal" on those charges. See Green v. United States, 355 U.S. 184, 190 (1957). Accordingly, on remand the State is precluded from trying Johnson for burglary and first- and second- degree homicide under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Id. at 190-91; Price v. Georgia, 398 U.S. 323, 329 (1970) ("[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge." (footnote omitted)).

22 No. 2018AP2318-CR.akz

¶38 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). It is

amongst many people's worst fears to be asleep with your family in

your own home and realize that someone may have broken in and is

in your house. Some might go armed to assess the situation. In

this case, the homeowner did not go armed, he was not even dressed.

He went without any clothing or weapons to find an armed and

dangerous man in his house. When the homeowner confronted the

criminal invader, the criminal invader shot the unarmed, naked

homeowner dead with his family asleep upstairs. Now the home

invader claims he was justified in shooting the homeowner, killing

him because the home invader was afraid.

¶39 Today, the court endows the person wrongfully in the

home with a jury instruction for perfect self-defense to homicide.

I fear that the teaching from the majority's opinion is that

criminal home invaders should go armed, shoot first, and later

claim to be afraid so to avoid conviction. Every home invader

should be afraid——afraid of detection, afraid of confrontation,

afraid of being shot by the homeowner, afraid of the police, afraid

of being convicted for the crime committed. But being afraid does

not mean that the home invader can shoot first in "self-defense."

The majority opinion creates a limitless loophole for those who

invade another's home so long as they claim to be afraid. The

majority opinion unleashes this perfect defense on the innocent

public at great cost. This cannot be the law.

¶40 The majority justifies its reasoning, claiming to cabin

this perfect defense to this unique group of facts. However, this is unsupported in the law. In fact, the law prohibits anyone from

1 No. 2018AP2318-CR.akz

trespassing into another's home. It was the defendant who claimed

to be afraid of the homeowner but chose to put himself in closer

proximity to the homeowner by breaking into his home. It was the

defendant who put himself at risk by wrongfully entering another

person's home in the middle of the night. Here, the defendant was

not randomly confronted with the need to exercise self-defense——

he broke into another's home! Most typically, self-defense is the

answer to an unexpected confrontation such that the person is

permitted to use the amount of force necessary to escape and

retreat. To allow the criminal home invader under these facts the

opportunity to claim perfect self-defense is previously unknown in

Wisconsin law.

¶41 And what of the Castle Doctrine?1 The majority dispenses

with a homeowner's presumptive right to attack a home invader,

stating that it is irrelevant to the analysis. But the law rebuts

this claim. To receive the perfect self-defense jury instruction,

Johnson had to believe that K.M.'s lunge was unlawful. However,

the Castle Doctrine makes clear that K.M. was legally permitted to

lunge at——and even possibly kill——Johnson. But the majority balks

at the Castle Doctrine, claiming that the Castle Doctrine does not

impact this case because Johnson presented "some evidence" of

unlawful interference. If the Castle Doctrine does not apply when

a homeowner lunges at a home invader who is carrying a gun, then

when does it apply? Such ignorance of the purpose underlying the

Castle Doctrine is astonishing.

1 The Castle Doctrine, as codified in Wis. Stat. § 939.48(1m), provides a presumptive right for a homeowner to use deadly force against a home invader.

2 No. 2018AP2318-CR.akz

¶42 The majority's conclusions cannot be the law. It

unwittingly instructs criminals to go armed and shoot to kill

during a home invasion, so the invader can claim perfect self-

defense and escape criminal liability. The majority green lights

vigilantes to break into suspected criminals' homes and take the

law into their own hands. The majority undermines a homeowner's

presumptive right to defend the home against invaders. Because

the law does not permit these unimaginable outcomes, I would hold

that Johnson is not entitled to jury instructions on either perfect

self-defense or second-degree reckless homicide. Accordingly, I

respectfully dissent.2

I. FACTUAL BACKGROUND

¶43 I begin by setting forth relevant facts as established

by Johnson's testimony.3 As will be shown, this case hinges in

large part on the testimony presented to the jury.

¶44 Johnson testified that many years before the home

invasion and shooting here, Johnson had found child pornography on

K.M.'s computer. Johnson stated that he filed a report with the authorities stating that K.M.'s computer contained child

pornography. The sheriff's office informed Johnson that there was

"nothing [they] could do" about his report and tip because the

evidence was "stale." Disappointed that the police did not take

2 However, despite its errors and faults, the majority correctly determined that the circuit court did not err when it excluded certain other-acts evidence. 3 Johnson's testimony is the only evidence in the record about what occurred on the night Johnson shot and killed K.M.

3 No. 2018AP2318-CR.akz

action, Johnson informed his father about the child pornography

and the report. Johnson's father confronted K.M. about the child

pornography, and K.M. stated that he had "moved" the child

pornography.4

¶45 Upset that no one had taken any action against K.M.,

Johnson decided to take the law into his own hands. On the night

of October 24, 2016, around 11:45 p.m., Johnson decided he would

break into K.M.'s house and obtain "fresh" pictures of child

pornography from K.M.'s computer. He decided to break in so late

at night "because [he] figured everyone would be asleep." Johnson

left to go to K.M.'s house, arming himself with his father's

handgun and gloves. Johnson testified that he brought the gloves

because he "didn't want to fry any of the equipment" because of

static electricity. He also testified that he brought the gun

because "[he] wouldn't be able to go in [K.M.'s house]" without it

as he needed to feel safe in case K.M. found him after breaking

in.

¶46 Johnson arrived at K.M.'s house and parked around the

corner. He then proceeded to break into K.M.'s house using the

back door. After invading K.M.'s house, Johnson went to K.M.'s

computer, with his gun and gloves, to search for what he believed

would be child pornography.

4According to the defendant, Johnson and K.M. had a poor relationship. K.M. was married to Johnson's older sister. Johnson testified that for many years K.M. was physically abusive to him, his younger sister, and his nephew——K.M.'s son. Johnson also testified that on one occasion K.M. put his hands down Johnson's pants. He claimed to be afraid of K.M.

4 No. 2018AP2318-CR.akz

¶47 After searching for over two hours, at around 2:00 a.m.

on October 25, 2016, Johnson heard a "scuff" outside of the

computer room. Johnson exited out of the programs on the computer,

closed it, grabbed the gun, stood up, and walked towards the door.

As Johnson was walking towards the door, a naked K.M. opened the

door, peered into the darkened room, and saw Johnson. K.M.

immediately shut the door while Johnson stood still, gun in hand.

Johnson testified that he felt like he had no means to escape the

room other than through the door that K.M. just shut. During this

standstill, Johnson's sister and nephew were asleep upstairs.

¶48 After a few moments, the door flew open, and K.M. lunged

at Johnson. Johnson testified that he did not recall what happened

after the lunge, but it is clear what happened based on the

evidence. Johnson shot the semi-automatic handgun five times,

thus pulling the trigger five individual times, hitting K.M. with

each shot. Johnson testified that he did not feel K.M. touch him

at any time during this interaction. K.M. died from these gunshot

wounds.

¶49 Although he does not remember how he left the room, it

is clear that Johnson had to step over K.M.'s body to exit the

room. When he exited the room, Johnson was covered in blood. At

no time did Johnson call out to his sister or nephew, nor did he

render aid to the shot K.M. Instead, Johnson next recalled being

several blocks away in the truck he came in, soaked in blood.

¶50 Later the same day, still October 25, 2016, the police

began investigating K.M.'s death. The police questioned Johnson twice regarding K.M.'s death. Both times, Johnson lied to the

5 No. 2018AP2318-CR.akz

police, stating that he did not know how K.M. died. However, later

in the day, Johnson confessed: "Arrest me, I killed him."

II. STANDARD OF REVIEW

¶51 This case asks the court to determine whether Johnson is

entitled to jury instructions for both perfect self-defense and

second-degree reckless homicide. "A circuit court has broad

discretion in issuing jury instructions based on the facts and

circumstances of the case and in deciding whether to give a

specific jury instruction requested by the parties." State v.

Neumann, 2013 WI 58, ¶89, 348 Wis. 2d 455, 832 N.W.2d 560.

"Whether there are sufficient facts to warrant the circuit court's

instructing the jury on self-defense is a question of law that the

court decides independently of the circuit court and court of

appeals, but benefiting from their analyses." State v. Stietz,

2017 WI 58, ¶14, 375 Wis. 2d 572, 895 N.W.2d 572. Similarly, the

court decides independently "whether the evidence adduced at trial

permits the giving of a lesser-included offense instruction," as

this is a question of law. State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W.2d 317 (1989).

¶52 This case also requires the interpretation and

application of statutes, which this court does independent of the

circuit court and court of appeals. State v. Trammell, 2019 WI

59, ¶16, 387 Wis. 2d 156, 928 N.W.2d 564.

III. ANALYSIS

¶53 This analysis centers on the majority's erroneous conclusion that the circuit court should have provided a perfect

6 No. 2018AP2318-CR.akz

self-defense jury instruction and a second-degree reckless

homicide jury instruction. I begin with a discussion of the

perfect self-defense jury instruction before turning to the

second-degree reckless homicide jury instruction.

A. Perfect Self-Defense

¶54 Johnson argues that he was entitled to receive the

perfect self-defense jury instruction. The circuit court

correctly concluded that Johnson was not entitled to receive the

perfect self-defense jury instruction.

¶55 In Wisconsin, there are two types of self-defense a

defendant can claim: imperfect self-defense and perfect self-

defense. Imperfect self-defense is an affirmative defense to

first-degree intentional homicide, which is available when

"[d]eath was caused because the actor believed he or she or another

was in imminent danger of death or great bodily harm and that the

force used was necessary to defend the endangered person, if either

belief was unreasonable." Wis. Stat. § 940.01(2)(b). If found by

a jury, imperfect self-defense mitigates first-degree intentional

homicide to second-degree intentional homicide. See Wis. Stat.

§§ 940.01(2), 940.05(3). The circuit court instructed the jury on

imperfect self-defense in this case.

¶56 Unlike imperfect self-defense, which merely mitigates a

conviction, perfect self-defense is an affirmative defense that

completely bars conviction for certain crimes. See Wis. Stat.

§§ 939.45, 939.48(1). Wisconsin codified perfect self-defense in

§ 939.48(1), which provides:

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or 7 No. 2018AP2318-CR.akz

terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.[5] Distilling this statute down, perfect self-defense has two

elements when the defendant uses deadly force: (1) a reasonable

belief in the existence of an unlawful interference that is likely to cause imminent death or great bodily harm; and (2) a reasonable

belief that the amount of force the person intentionally used was

necessary to prevent imminent death or great bodily harm to the

defendant. See State v. Head, 2002 WI 99, ¶84, 255 Wis. 2d 194,

648 N.W.2d 413. However, when determining whether a particular

defendant is entitled to a perfect self-defense jury instruction,

the "reasonable belief" articulated is from the perspective of a

prudent person. Stietz, 375 Wis. 2d 572, ¶15. Phrased another

way, to receive the perfect self-defense jury instruction, a

defendant had to produce "some evidence" that "a reasonable jury

could find that a prudent person in the position of the defendant under the circumstances at the time of the incident could believe

that he was exercising the privilege of self-defense." Id., ¶¶15,

16.

¶57 Accordingly, to receive the perfect self-defense jury

instruction, Johnson must present some evidence that a reasonable

5"In this section 'unlawful' means either tortious or expressly prohibited by criminal law or both." Wis. Stat. § 939.48(6).

8 No. 2018AP2318-CR.akz

jury could find that (1) a prudent person in Johnson's position

would reasonably believe that K.M. was unlawfully interfering in

such a way that would cause imminent death or great bodily harm to

Johnson, and (2) a prudent person in Johnson's position would

reasonably believe that shooting K.M. was necessary to prevent

imminent death or great bodily harm to Johnson.

¶58 This is no ordinary self-defense case. This is a case

where the defendant used "force which is intended or likely to

cause death or great bodily harm." Consequently, the interference

must have been the type that is likely to cause "imminent death or

great bodily harm" to Johnson. See Wis. Stat. § 939.48(1).

¶59 Moreover, the majority erroneously focuses on whether

Johnson, and not a prudent person in Johnson's position, possessed

a reasonable belief. Majority op., ¶20.6 This restatement of the

test impermissibly injects Johnson's subjective beliefs at the

time of the incident into an inquiry that focuses on what a

reasonable jury could find based on what a prudent person in

Johnson's position would reasonably believe. See Steitz, 375

6 Although the majority purports to be applying the objective test, it continually restates that it is looking at what Johnson believed and not what a prudent person in Johnson's position would have believed. See majority op., ¶22 ("we must determine if some evidence was presented from which a jury could find that Johnson reasonably believed . . . ."); id., ¶23 ("A reasonable jury could conclude that Johnson reasonably believed . . . ."); id., ¶24 ("Johnson must also present some evidence from which a reasonable jury could conclude he intentionally used only the force he reasonably believed . . . ."); id., ¶25 ("[A] jury could infer that Johnson intentionally used only the force he reasonably believed . . . .") (Emphases added.)

9 No. 2018AP2318-CR.akz

Wis. 2d 572, ¶15. This flawed understanding of the objective test

colors the majority's entire analysis.

¶60 When we apply the correct, objective standard, it is

clear that Johnson has presented no evidence from which a

reasonable jury could find that a prudent person in Johnson's

position could reasonably believe that K.M. was unlawfully

interfering in such a way that would cause imminent death or great

bodily harm to Johnson. Similarly, it is clear that Johnson

presented no evidence from which a reasonable jury could find that

a prudent person in Johnson's position could reasonably believe

that shooting K.M. was necessary to prevent imminent death or great

bodily harm to Johnson.

1. No objective, reasonable belief in the existence of unlawful interference ¶61 For two independently sufficient reasons, Johnson cannot

show that he provided sufficient evidence of K.M.'s alleged

unlawful interference that was likely to cause imminent death or

great bodily harm to Johnson. First, K.M. was not acting

unlawfully because his conduct was protected by the Castle Doctrine. Second, Johnson has provided no objective facts that

demonstrate that a reasonable jury could find that a prudent person

in Johnson's position would reasonably believe that K.M. was

unlawfully acting in such a way that would cause imminent death or

great bodily harm to Johnson.

a. Castle Doctrine

¶62 K.M.'s alleged interference was not unlawful because it was protected by the Castle Doctrine. The Castle Doctrine extends

the self-defense privilege in the context of the home to include 10 No. 2018AP2318-CR.akz

the presumptive right to use deadly force. See Wis. Stat.

§ 939.48(1m); see also State v. Christen, 2021 WI 39, ¶44, 396

Wis. 2d 705, 958 N.W.2d 746. When a homeowner uses deadly force

against a person that the homeowner reasonably believed unlawfully

and forcibly entered the homeowner's dwelling, "the court may not

consider whether the actor had an opportunity to flee or retreat

before [the homeowner] used force and shall presume that the

[homeowner] reasonably believed that the force was necessary to

prevent imminent death or great bodily harm to himself or herself."

Wis. Stat. § 939.48(1m)(ar). This means that when a homeowner

finds someone in their home and the homeowner reasonably believes

that person broke into the home, the homeowner has the presumptive

right to use deadly force against the invader.

¶63 The Castle Doctrine intersects with this case because

Johnson was just such an invader in K.M.'s home. Johnson broke

into K.M.'s home in the middle of the night, and K.M. found him as

an invader——satisfying the first aspect of the Castle Doctrine.

Consequently, the court must presume that any force K.M. was going

to use was necessary, even if it was deadly force.

¶64 As relevant to the perfect self-defense jury

instruction, Johnson had to reasonably believe that K.M. was acting

under the Castle Doctrine. "[E]very person is expected to know

the law." Neumann, 348 Wis. 2d 455, ¶50 n.29; see also Byrne v.

State, 12 Wis. 519 (1860) ("[D]efendants are presumed to know the

law . . . ."). As such, we presume that Johnson knows the Castle

Doctrine. Because Johnson is presumed to know of the Castle Doctrine, it is clear that an objective, prudent person in

11 No. 2018AP2318-CR.akz

Johnson's position would know that the homeowner——here, K.M.——

could legally use deadly force on the person when found after a

break-in. Accordingly, Johnson cannot show that K.M.'s lunge was

an unlawful interference because K.M. was presumptively permitted

to lunge at and attack Johnson as an invader in his home.

¶65 Johnson attempts to circumvent this conclusion by

arguing that K.M. was actively engaged in a criminal activity;

namely, possession of child pornography. Johnson is correct that

a homeowner cannot rely on the Castle Doctrine when the homeowner

is "engaged in a criminal activity . . . at the time." Wis. Stat.

§ 938.48(1m)(b)1. However, mere speculation of criminal activity

cannot form the basis of overriding a homeowner's presumptive right

to use deadly force against a home invader; the homeowner must

actually be engaged in a criminal activity at the time. Id. There

is no evidence in the record that, at the time Johnson broke into

K.M.'s house, K.M. was engaged in any criminal activity. Johnson

alleges that he found child pornography on the computer that he

broke into the house to search; no such child pornography was

admitted into the record. Accordingly, K.M. was entitled to the

Castle Doctrine's presumption of the right to use deadly force.

Johnson failed to present any evidence that would overcome this

presumption.

¶66 The majority ignores the Castle Doctrine's impact on

this case, opening the door for vigilante justice and providing

motivation to home invaders to shoot to kill so they can claim

perfect self-defense. The law and its procedures not only protect the accused, but also the victim. See Wis. Const. art. I, § 9m.

12 No. 2018AP2318-CR.akz

The majority ignores K.M.'s presumptive right to defend his home

and his family against a home invader. Instead, the majority green

lights a home invader's attempt to escape all liability and dilutes

a homeowner's presumptive right to protect the home against those

invaders. I would not allow such a green light, and I would apply

the Castle Doctrine to K.M.'s actions, meaning that K.M.'s actions

were lawful; and therefore, Johnson is not entitled to a perfect

self-defense jury instruction.

b. No evidence

¶67 The Castle Doctrine notwithstanding, Johnson did not

proffer any evidence from which a reasonable jury could find that

a prudent person in Johnson's position would reasonably believe

that K.M. was unlawfully acting in such a way that would cause

imminent death or great bodily harm to Johnson. Because the

analysis must be from the perspective of the objective, prudent

person, I begin by setting forth the facts, not Johnson's feelings

or characterizations, in the light most favorable to Johnson.7

¶68 Here, Johnson entered K.M.'s house in the middle of the

night. Johnson arrived with gloves, a gun, and a plan: to

investigate K.M. and discover what he thought was criminal

7 Included in these facts are "the personal characteristics and histories of the parties" as those characteristics and histories are part of the record. State v. Jones, 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989). In the context of claims of self- defense, this type of evidence is commonly referred to as McMorris evidence; that is, "evidence of violent acts the victim had committed which [the defendant] knew about at the time of the alleged crime, and which would bear on the reasonableness of the claim of self-defense." State v. McClaren, 2009 WI 69, ¶1, 318 Wis. 2d 739, 767 N.W.2d 550 (citing McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973)).

13 No. 2018AP2318-CR.akz

activity. After several hours of investigating on K.M.'s computer,

Johnson heard a noise, closed the computer, grabbed the gun, and

headed to the door. A naked K.M. opened the door, peered into a

darkened room, and saw Johnson. K.M. then immediately closed the

door. Johnson stood there, gun in hand, and did not make a move.

Johnson knew of K.M.'s history of choking people, pulling hair,

squeezing heads, and punching people, and that K.M. was much larger

than himself. K.M. then opened the door and lunged at Johnson.

In response, Johnson shot K.M. five times, killing K.M.

¶69 These are the objective facts, presented in the light

most favorable to Johnson, from his own testimony. Johnson had to

supply evidence that K.M.'s interference was likely to cause

imminent death or great bodily harm to Johnson. A mere lunge can

hardly be characterized as likely to cause imminent death or great

bodily harm. Simply put, Johnson presented no evidence that K.M.'s

alleged unlawful interference was likely to cause imminent death

or great bodily harm to Johnson. Accordingly, Johnson is not

entitled to receive the perfect self-defense jury instruction.

2. No objective, reasonable belief that killing K.M. was necessary to prevent imminent death or great bodily harm. ¶70 For two independently sufficient reasons, Johnson cannot

show that he provided sufficient evidence from which a reasonable

jury could conclude that a prudent person in Johnson's position

would reasonably believe that killing K.M. was necessary to prevent

imminent death or great bodily harm to Johnson. First, Johnson

was unlawfully in K.M.'s home, creating the danger by his own wrongful conduct. As such, his force was legally not necessary

14 No. 2018AP2318-CR.akz

because he unlawfully sought out the danger that caused him to

exercise "self-defense." Second, Johnson has provided no evidence

that shooting and killing K.M. was necessary to prevent imminent

death or great bodily harm to Johnson.

a. No perfect self-defense when creating the danger

¶71 Over a century ago, this court stated the rule of self-

defense generally requires a person to have the right to be in the

location where self-defense is exercised:

[The common law rule of retreat] has been superseded by a doctrine in harmony with the divine right of self- defense; the doctrine that when one is where he has a right to be and does not create the danger by his own wrongful conduct, he may stand his ground, if assailed by another . . . . Miller v. State, 139 Wis. 57, 75, 119 N.W. 850 (1909) (emphasis

added); see also State v. Watkins, 2002 WI 101, ¶¶91-94, 255

Wis. 2d 265, 647 N.W.2d 244 (explaining that the rule from Miller

must be considered when determining whether the force used was

necessary). Thus, a defendant generally cannot claim self-defense

if he or she was illegally in the place where self-defense was

used because this conflicts with the principle of retreat. Here,

the defendant did the opposite of retreat. Johnson broke into

K.M.'s home and placed himself in a situation where the reasonable

person would suspect that the homeowner may attack a home invader.

The logic of retreat and self-defense is to avoid possible

confrontation and use force only when necessary to protect oneself.

The majority does not address retreat, nor the fact that Johnson

broke into K.M.'s house while armed with the specific intention of protecting himself against attack. Johnson's "self-defense" can

15 No. 2018AP2318-CR.akz

hardly be called necessary when he sought out the situation where

he would have to use self-defense.

¶72 Allowing a defendant who seeks out life-threatening

danger by breaking into a home to claim self-defense also

fundamentally undermines a homeowner's Second Amendment right to

"possess and carry weapons in case of confrontation." Christen,

396 Wis. 2d 705, ¶43 (quoting District of Columbia v. Heller, 554

U.S. 570, 592 (2008)). Under the majority's logic, a domestic

abuser could know that his or her victim keeps a firearm in a

bedside drawer for defense, as is constitutionally permitted. The

abuser could then bring a gun to "defend themselves" because the

abuser knows of the victim's firearm. Then, the abuser could enter

the victim's home——under the pretenses of investigating alleged

criminal activity——shoot the domestic abuse victim, and claim that

he or she feared for his or her life because the victim had a gun.

Such backward logic transforms a homeowner's lawful right to

possess a firearm for home defense into the catalyst for a home

invader to shoot a homeowner and receive perfect self-defense.

This example of a domestic abuse situation is not alone. Consider

rival gang members who have bad blood, breaking and entering into

another's home with a gun, shooting another, claiming to be afraid

of another, and asserting perfect self-defense. And the examples

could go on and on without limitation. This is not, and cannot,

be the law.

¶73 Because Johnson unlawfully sought out the danger, by

breaking into K.M.'s home, that required him to exercise "self- defense," Johnson cannot now claim that the amount of force he

16 No. 2018AP2318-CR.akz

used was necessary. Johnson should never have been in K.M.'s home.

Accordingly, Johnson is not legally entitled to a perfect self-

defense jury instruction.

¶74 Johnson also presented no evidence that shooting and

killing K.M. was necessary to prevent imminent death or great

bodily harm to Johnson. As I just discussed, there was no threat

of imminent death or great bodily harm. Even beyond that simple

fact, Johnson proffered no testimony that shooting and killing

K.M. was necessary. Johnson testified that he has no memory from

the time K.M. lunged at him until several minutes later when he

clearly recalls driving home with blood-soaked clothing. During

the critical period of when Johnson pulled the trigger, he recalls

nothing——not pulling the trigger, the sound of the gun, nor

stepping over K.M.'s body to exit the room.

¶75 Johnson provided a complete dearth of evidence as to the

necessity. Because Johnson presented no evidence as to why or how

he pulled the trigger, killing K.M., a reasonable jury must look

at what was known up until the time of the lunge from the

perspective of an objective, prudent person, not Johnson's

statement of his own perspective. Johnson testified that he knew

that his sister and his nephew were sleeping in a room adjacent to

where the interaction occurred. He acknowledged that he could

have called out to them for assistance or to alert them to any

impendent threat to life and limb.

¶76 Johnson argues that K.M. knew he found evidence of criminal activity, and so K.M. was attempting to kill him to

17 No. 2018AP2318-CR.akz

prevent him from going to the police with the evidence.

Consequently, his force was necessary to prevent K.M.'s imminent

threat to life and limb. Despite Johnson's characterizations,

there is simply no evidence in the record that K.M. was engaged in

criminal activity, nor is there any evidence in the record from

which a reasonable jury could conclude that a prudent person in

Johnson's position would believe this.

¶77 In sum, there is a complete lack of evidence that K.M.'s

lunge was going to cause imminent death or great bodily harm and

that Johnson shooting K.M. was necessary to prevent imminent death

or great bodily harm. Consequently, Johnson was not entitled to

a perfect self-defense jury instruction.

B. Second-Degree Reckless Homicide

¶78 Johnson was not entitled to receive a jury instruction

on second-degree reckless homicide as a lesser-included offense to

first-degree reckless homicide. We have adopted a two-step process

to determine "whether a lesser included instruction should be

given." State v. Muentner, 138 Wis. 2d 374, 387, 406 N.W.2d 415

(1987). The first step of this process is to "determine, as a

matter of law, whether the offense was lesser included." Id.

"Wisconsin has adopted the 'elements only' test," which means that

a lesser included crime is "[a] crime which does not require proof

of any fact in addition to those which must be proved for the crime

charged." State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259

(Ct. App. 1999) (alteration in original) (citation omitted). If

the offense was lesser included, "[t]he second step is to determine whether there is a reasonable basis in the evidence for an

18 No. 2018AP2318-CR.akz

acquittal on the greater charge and for a conviction on the lesser

charge." Muentner, 138 Wis. 2d at 386. "[T]he second step

involves a weighing of evidence which would be presented to the

jury. Thus, the court is assessing the likelihood that the jury

would find all the elements of the particular crime." Id.

¶79 Here, Johnson was charged, and convicted of, first-

degree reckless homicide. To be found guilty of first-degree

reckless homicide, a person must "recklessly cause the death of

another human being under circumstances which show utter disregard

for human life." Wis. Stat. § 940.02(1).8 Johnson is seeking to

receive a jury instruction on second-degree reckless homicide. To

be found guilty of second-degree reckless homicide, a person must

"recklessly cause the death of another human being."9

¶80 Applying the first step to determine whether a lesser-

included offense jury instruction is required, we must compare the

elements of first- and second-degree reckless homicide. Jones,

228 Wis. 2d at 598. When we compare the elements, every element

of second-degree reckless homicide must be proven for a person to

be convicted of first-degree reckless homicide. Accordingly,

second-degree reckless homicide is a lesser-included offense of

first-degree reckless homicide.

8 There are other circumstances under which an individual may be found guilty of first-degree reckless homicide. Wis. Stat. § 940.02(1m), (2). However, these other circumstances are not at issue in this case. 9 A person can also be found guilty of second-degree reckless homicide if the person "recklessly causes the death of an unborn child." Wis. Stat. § 940.06(2).

19 No. 2018AP2318-CR.akz

¶81 Having determined that second-degree reckless homicide

is a lesser-included offense of first-degree reckless homicide, we

turn to step two: "whether there is a reasonable basis in the

evidence for an acquittal on the greater charge and for a

conviction on the lesser charge." Muentner, 138 Wis. 2d at 387.

Because "utter disregard for human life" is the only element that

is different between first- and second-degree reckless homicide,

we must weigh the facts of this case and determine whether Johnson

acted with an utter disregard for human life. Id. Accordingly,

if we weigh the evidence and determine that no reasonable jury

could determine that Johnson did not act with an utter disregard

for human life, Johnson would not be entitled to a jury instruction

on second-degree reckless homicide.

¶82 "[U]tter disregard for human life is measured

defendant's position would have known." State v. Jensen, 2000 WI

84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170.10 If utter disregard for

human life is proven, "the offender is considered more culpable

because the conduct, according to the standards observed by the

great mass of mankind, went beyond simple criminal recklessness to

encompass something that, although falling short of an intentional

crime, still deserves to be treated more seriously under the law

and punished more severely." Id. "In evaluating the proof of

10 I agree with the majority that "the proper inquiry is whether a defendant showed regard for human life with respect to those present during the events in question" and not a general regard for the wellbeing and safety of those not present. Majority op., ¶31 n.16.

20 No. 2018AP2318-CR.akz

utter disregard for human life, the factfinder is to consider all

the factors relating to the conduct including what the defendant

was doing; why he was doing it; how dangerous the conduct was; how

obvious the danger was and whether the conduct showed any regard

for human life." Id., ¶24 (cleaned up).11

¶83 Here, no reasonable jury could conclude that Johnson

acted without utter disregard for human life. Johnson carried a

gun and gloves to break into his brother-in-law's house in the

middle of the night. After spending several hours in the house as

an invader, Johnson heard a noise outside of the computer room.

Instead of calling out to his brother-in-law, his sister, or his

nephew, Johnson covered his tracks, closing the computer and

walking towards the door, gun in hand. After K.M. lunged into the

room, Johnson pulled the trigger of his gun five individual times

with each of the shots hitting K.M., including in his back and

head. Instead of alerting his sister or nephew that he just shot

K.M., Johnson stepped over K.M.'s body and fled the scene. At no

time did Johnson render aid to K.M. nor did he attempt to show any

regard for his callous act of shooting another man. Based on these

facts, no reasonable jury could conclude that Johnson acted without

utter disregard for K.M.'s life.

¶84 The majority ignores several key facts in its analysis

of the night in question. Namely, the majority ignores that

11The phrasing of these factors has changed over time. Compare State v. Edmunds, 229 Wis. 2d 67, 77, 598 N.W.2d 290 (1999), with Wis JI——Criminal 1022 (2015). But the underlying factors have remained unchanged——we must observe the totality of the circumstances from the perspective of a reasonable person in the defendant's position.

21 No. 2018AP2318-CR.akz

Johnson shot K.M. five times, never called for assistance from his

nearby sister or nephew——either before the murder or after——never

rendered aid to K.M., then stepped over K.M.'s body, and fled the

scene. Instead of observing the "totality of the circumstances,"

the majority focuses on the fact that Johnson said that he brought

a gun with the intent of using it for self-defense. Majority op.,

¶30. The majority's cherry-picking of facts demonstrates that the

majority is not considering the totality of circumstances. When

we observe all of the facts and weigh them, it is clear that no

reasonable jury could conclude that Johnson acted without utter

disregard for K.M.'s life. Accordingly, Johnson is not entitled

to a second-degree reckless homicide jury instruction.

IV. CONCLUSION

¶85 The majority's conclusions cannot be the law. It

unwittingly instructs criminals to go armed and shoot to kill

during a home invasion, so the invader can claim perfect self-

defense and escape criminal liability. The majority green lights

vigilantes to break into suspected criminals homes and take the law into their own hands. The majority undermines a homeowner's

presumptive right to defend the home against invaders. Because

the law does not permit these unimaginable outcomes, I would hold

that Johnson is not entitled to jury instructions on either perfect

self-defense or second-degree reckless homicide.

¶86 For the foregoing reasons, I respectfully dissent.

¶87 I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this dissent.

¶88 I am also authorized to state the Justice JILL J.

KAROFSKY joins ¶¶1-3, 5-23, and 30-48 of this dissent.