State v. Blanco

371 N.W.2d 406, 125 Wis. 2d 276, 1985 Wisc. App. LEXIS 3435
CourtCourt of Appeals of Wisconsin
DecidedJune 12, 1985
Docket84-2142-CR
StatusPublished
Cited by5 cases

This text of 371 N.W.2d 406 (State v. Blanco) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Blanco, 371 N.W.2d 406, 125 Wis. 2d 276, 1985 Wisc. App. LEXIS 3435 (Wis. Ct. App. 1985).

Opinions

[277]*277SULLIVAN, J.

Billy Jo Blanco (Blanco) appeals from a judgment and order of the circuit court finding him not guilty by reason of mental disease or defect of two counts of endangering safety by conduct regardless of life in violation of sec. 941.30, Stats., and ordering him committed to a mental health facility. Blanco disputes the trial court’s underlying finding that he violated the aforementioned statute. Blanco argues that the state did not prove beyond a reasonable doubt that he was conscious of the nature of his acts and the potential for harm and that, therefore, there was no proof of the depraved mind element of the crime of endangering safety. We hold that the state was not required to prove Blanco’s subjective consciousness of the nature of his acts and their possible result but rather only that his objective conduct manifested a depraved mind. We affirm the judgment and the order of commitment.

It is undisputed that Blanco set fires in his jail cell in the Milwaukee House of Correction on May 3, 1983, and again on June 5, 1983. Officer Frittitta testified at trial that on May 3, 1983, he smelled smoke and then noticed smoke coming from cellblock A, where Blanco was confined. Officer Frittitta then heard some of the approximately thirteen inmates in that block yelling, “Fire!” The officer walked in the direction of the smoke and came upon Blanco’s cell, where he observed a fire. He saw Blanco walking back and forth, mumbling and smiling. Blanco’s mattress, sheet and blanket were on fire. As officer Frittitta operated a fire extinguisher, Blanco threw cups of urine and feces at the officer. Blanco had been storing the waste material for days. Officer Frittitta described Blanco as grinning and talking to himself. The area of the jail in which Blanco was confined at the time of the fire was one reserved for persons being observed for possible mental problems. As officer Frittitta was trying to put out the [278]*278fire, he had trouble breathing and noticed that other inmates were having the same difficulty. Blanco made no attempt to avoid the smoke or flames.

A similar incident took place on June 3, 1983. Officer James testified that on that date he noticed smoke coming from cellblock A. There were nine or ten inmates in that immediate section and about fifty in the general area, all locked in their cells. Officer James crawled beneath the dense smoke to reach the cellblock and found the flames coming from a mattress, sheet, blanket and some clothing articles in Blanco’s cell. The officer observed Blanco walking back and forth and hopping up and down. Blanco was smiling, laughing and speaking to himself in a sing-song way, referring to himself as “Superman” and using the Spanish words, “fuego” and “bueno,” which mean “fire” and “good.” Blanco did nothing to avoid the smoke or the flames, which reached to the ceiling.

In a trifurcated trial to the court Blanco was found guilty in the first phase of two counts of endangering safety by conduct regardless of life. See sec. 941.30, Stats. In the second phase Blanco was found not guilty by reason of mental disease or defect. In the third phase he was found to be dangerous to himself and others. The court ordered Blanco committed. This appeal followed.

Blanco argues the state did not prove beyond a reasonable doubt every element constituting the crime with which he was charged. See In re Winship, 397 U.S. 358, 364 (1970). He contends the state failed to prove the “depraved mind” element of sec. 941.30, Stats.

Section 941.30, Stats., provides that “[w]hoever endangers another’s safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, is guilty of a Class D felony.” Blanco concedes that the section “does not expressly require proof that the conduct show that the accused [279]*279was conscious of the nature of his act and its possible result.” Blanco contends, however, that the term, “depraved mind,” has a technical meaning, developed by case law, under which a consciousness of the nature and possible result of the dangerous acts is a prerequisite to conviction.

Blanco relies primarily on the following passage from State v. Weso, 60 Wis. 2d 404, 411-12, 210 N.W.2d 442 446 (1973) : “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.” Taken out of context, the above statement arguably could be read as authority for the proposition advanced by Blanco that the depraved mind element requires proof of the defendant’s subjective awareness of the nature of his or her acts, and not simply proof of conduct evincing a depraved mind.

Other arguable authority for the proposition may be found in the supreme court’s approval of the admission of prior conduct evidence to establish the depraved mind elements of both endangering safety by conduct regardless of life, see State v. Kuta, 68 Wis. 2d 641, 644-45, 229 N.W.2d 580, 582 (1975), and injury by conduct regardless of life under sec. 940.23, Stats., see Hammen v. State, 87 Wis. 2d 791, 798-99, 275 N.W.2d 709, 713 (1979). The supreme court’s approval of other crimes evidence to prove state of mind in the context of the depraved mind element of two offenses could be taken to imply that the depraved mind element requires proof of the accused’s subjective mental state.

The most recent arguable suggestion that the depraved mind element requires proof of the accused’s subjective disregard for life may be found in Hagenkord v. State, 100 Wis. 2d 452, 484-85, 302 N.W.2d 421, 437-38 (1981) : “[T]he ‘depraved mind’ element imports a state of mind which, although less than specific intent, is more criminally culpable than negligence because of its offensive [280]*280and shocking nature. It is a heinous type of mens rea which constitutes a distinct and blameworthy element of three statutory crimes.” (Footnote omitted.)

The above passages, when taken out of context, appear to offer support for Blanco’s position that a defendant charged with endangering safety by conduct regardless of life must be shown to have been conscious of the nature of, and possible harm resulting from, his or her acts. Nevertheless, a thorough review of the relevant case law and model jury instruction convinces us that the depraved mind element of sec. 941.30, Stats., may be established objectively by proof of conduct evincing a depraved mind.

An extensive discussion of the depraved mind element may be found in Weso, 60 Wis. 2d at 408-12, 210 N.W.2d at 444-46. Weso stands for the proposition that the qualities of an act which show a depraved mind are to be found in the act itself and the circumstances of its commission. Id. at 408-09, 210 N.W.2d at 444 (citing Montgomery v. State, 178 Wis. 461, 190 N.W. 105 (1922) and Hogan v. State, 36 Wis. 226 (1874)).

A depraved mind, as an element of an offense, is a self-created condition of the mind and is to be distinguished from insanity and feeblemindedness. Weso, 60 Wis. 2d at 409, 210 N.W.2d at 444.

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State v. Blanco
371 N.W.2d 406 (Court of Appeals of Wisconsin, 1985)

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Bluebook (online)
371 N.W.2d 406, 125 Wis. 2d 276, 1985 Wisc. App. LEXIS 3435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blanco-wisctapp-1985.