State v. Glenn

¶1Anthony Glenn seeks review of a decision of the court of appeals1 affirming his judgment of conviction for intermediate aggravated battery, party to a crime. He argues that the trial court erred in not giving his requested jury instruction on the lesser-included offense of battery. Glenn asserts that he was entitled to the lesser-included offense because the incident for which he was charged consisted of two separate acts and the jury could have believed evidence that he participated only in conduct consisting of simple battery. Because the only element differentiating simple battery and intermediate aggravated battery is the degree of harm and it is undisputed that there was great bodily harm, we affirm the trial court's refusal to instruct the jury on the lesser-included battery offense.

¶2I.

¶3The victim, Robert Massaro, and three friends, Cheryl Greer, Dennis Gadbois, and Christy Pruitt, were at the end of the government fishing pier at McKinley Marina in Milwaukee when Glenn arrived with three of his friends, Jon Matthews, Steven Brown, and Anthony Kimber. A confrontation between the two groups ensued. The accounts from the participants and witnesses of the subsequent events vary substantially. However, it is undisputed that members of Glenn's *579group repeatedly struck Massaro. At some point Mas-saro fled down the pier toward shore. Brown immediately chased Massaro, and Glenn and his other two friends followed at various speeds and distances. Massaro eventually jumped from the pier into the lake and subsequently drowned.

¶4Glenn was charged with intermediate aggravated battery, party to a crime, contrary to Wis. Stat. §§ 940.19(lm) and 939.05 (1989-90).2 The information alleged that Glenn, as party to a crime, intended to cause bodily harm to Massaro but instead caused great bodily harm when Massaro jumped to his death.

¶5At trial Glenn testified that although he hit Gadbois at the end of the pier, he never hit Massaro. He *580also admitted that he ran down the pier after Brown began to chase Massaro, and recalled that Kimber repeatedly yelled "get him [Massaro]." Nevertheless, Glenn denied being a part of the chase. He testified that Massaro and Brown were already gone when he began running and that he had no intention of getting involved with that fight. Instead, he testified that he was running in an attempt to get off the pier "[b]ecause things just wasn't going right" and he wanted to go home.

¶6Contrary to Glenn's exculpatory testimony, several witnesses and participants implicated him in the entire incident. Two witnesses, Pruitt and Greer, testified that they saw all four men running after Massaro and that all were very close behind him. Matthews also told police that Glenn chased Massaro. Brown testified at trial that he did not see Glenn hit Massaro at the end of the pier, but admitted telling police after the incident that Glenn had done so.

¶7At the close of trial, Glenn requested that the court instruct the jury on the lesser-included offense of simple battery based on his version of the facts.3 He argued that the jury could have reasonably accepted his denial of participation in the chase leading to the drowning, but accepted evidence that he participated in the initial beating at the end of the pier, which only caused bodily harm to Massaro.

¶8The trial court, relying on State v. Wilson, 149 Wis. 2d 878, 440 N.W.2d 534 (1989), denied Glenn's request to instruct the jury on battery as a lesser-included *581offense. In Wilson, this court held that a defendant may receive a lesser-included offense instruction, even when the defendant has given exculpatory testimony, if a reasonable but different view of the nonexculpatory evidence supports acquittal on the greater charge and conviction on the lesser charge. Id. at 900-01. The trial court reasoned that based on the evidence presented, there was no basis for a conviction of a lesser-included simple battery because there was no dispute that the resulting injury to Massaro constituted great bodily harm.

¶9The court of appeals affirmed the trial court's denial of the lesser-included battery instruction, but on other grounds. State v. Glenn, 190 Wis. 2d 155, 526 N.W.2d 752 (Ct. App. 1994). The court agreed with Glenn that a reasonable view of the evidence suggested that the beating at the end of the pier was separate from the subsequent chase and jump into the lake. Id. at 161-64. However, relying on May v. State, 91 Wis. 2d 540, 283 N.W.2d 460 (Ct. App. 1979), affirmed on other grounds, 97 Wis. 2d 175, 293 N.W.2d 478 (1980), the court held that unlike with conspiracy, a defendant may not withdraw from aiding and abetting. Glenn, 190 Wis. 2d at 164-66. The court concluded that because the trial court correctly instructed the jury on withdrawal from a conspiracy, an additional lesser-included offense instruction on simple battery would have been inconsistent with May. Id. at 166.

¶10II.

¶11The primary issue presented is whether the trial court erred in denying Glenn's request for a jury instruction on the lesser-included offense of simple battery. While this court gives the circuit court broad *582discretion with respect to the submission of jury instructions, the issue of whether the evidence adduced at trial permits the giving of a lesser-included offense instruction presents a question of law which we review de novo. Wilson, 149 Wis. 2d at 898.

¶12Glenn's theory in favor of the lesser-included instruction rests on two components. On one hand, to be eligible for a lesser-included offense, Glenn necessarily argues that there was one overarching aggravated assault properly characterized as one continuous criminal event. On the other hand, Glenn contends that the aggravated assault consisted of two distinct acts: the battery at the end of the pier and the subsequent chase and jump into the lake. Glenn asserts that he is entitled to the battery instruction based on the evidence that he terminated his involvement after the battery. We will address each component of Glenn's theory in turn.

¶13Glenn's theory in favor of the lesser-included battery instruction first depends on the existence of one crime. The parties in their briefs and in oral argument to this court vigorously disputed whether the incident in question should be characterized as one or two crimes. Such arguments are misplaced. The relevant question is not whether the State could have charged one crime or two, but rather the propriety of charging the incident as one crime as the State chose to do here. We must view the evidence in the light most favorable to Glenn and his theory that the multiple acts of battery were properly charged in one offense as a continuing course of conduct. See State v. Jenkins, 168 Wis. 2d 175, 202, 483 N.W.2d 262 (Ct. App. 1992), cert. denied, 506 U.S. 1002 (1992).

¶14The testimony in this case regarding the time and distance between the beating at the end of the pier and *583Massaro's fatal jump varied widely. Gadbois testified that the incident lasted three to four minutes once members of Glenn's group began hitting Massaro. However, Greer estimated that the elapsed time was "no more than 15 minutes." Witnesses also had different estimates of the distance involved: Gadbois and Glenn estimated that the pier was between three and four blocks long while Matthews estimated the pier to be the length of a football field or four to six blocks long. Both Greer and Gadbois testified that Massaro jumped off at approximately the midpoint of the pier.

¶15This court in State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982), considered a similar fact situation involving a defendant charged with one count of battery for an incident involving two distinct assaults. In Giwosky, the victim testified that he was fishing in a river when the defendant threw a log from shore and hit him in the head. The victim then climbed out of the water to confront the defendant. A struggle ensued and the defendant hit the victim numerous times, struck him in the face with his knee and kicked him in the back. Id. at 448-49.

¶16The legal question presented was whether the defendant's right to a unanimous verdict was violated when the trial court did not instruct the jury that it had to be unanimous as to whether the defendant committed battery when he threw the log or during the altercation on the river bank. Id. at 451. This court held that because the incident was a continuous act, unanimity required only that the jury agree that the defendant committed an act of battery, not which particular act. The court explained:

The evidence introduced at trial establishes that the encounter was a short continuous incident that *584can not be factually separated. .. . Once the defendant began the altercation... there was no 'break in the action' and the confrontation continued until the defendant had incapacitated [the victim] on the river bank. After all, every blow that is struck in an altercation such as this is not a separate incident.

¶17Id. at 456-57 (emphasis added).

¶18Like Giwosky, there was evidence presented at trial in this case, when viewed most favorably to Glenn's one-crime theory, that the encounter on the pier was a short, continuous event. The chase followed immediately after the beating; there was no "break in the action." According to some witnesses, the incident lasted only a few minutes, with the battery and chase confined to the narrow pier until Massaro jumped from the pier to his death. Therefore, we conclude that the incident here may properly be viewed as a single continuous criminal event.

¶19This court has recognized that when charging a defendant who has engaged in a series of separate offenses which may properly be viewed as one continuing offense, "it is within the State's discretion to elect whether to charge 'one continuous offense or a single offense or series of single offenses.'" State v. Lomagro, 113 Wis. 2d 582, 587, 335 N.W.2d 583 (1983), quoting State v. George, 69 Wis. 2d 92, 100, 230 N.W.2d 253 (1975). See also State v. Chambers, 173 Wis. 2d 237, 250, 496 N.W.2d 191 (Ct. App. 1992). Accordingly, we conclude that the State properly exercised its discretion in issuing one charge of intermediate aggravated battery.4

¶20*585III.

¶21Having concluded that the incident was appropriately charged as one continuous course of criminal conduct, we next address whether the trial court erred in denying Glenn's request for an instruction on the lesser-included battery offense. Glenn argues that he was entitled to the lesser-included battery instruction because the jury could have believed evidence that he participated in the battery at the end of the pier but that he was not involved in the subsequent chase which caused Massaro to jump in the lake.

¶22"The submission of a lesser-included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense." Wilson, 149 Wis. 2d at 898. In this case Glenn presented wholly exculpatory testimony as to the charged offense but nonetheless requested a lesser-included battery instruction. As the trial court properly recognized, in such circumstances, a defendant or the State may receive a lesser-included offense instruction if a reasonable but different view of the record and any *586testimony other than the defendant's exculpatory testimony supports acquittal on the greater charge and conviction on the lesser charge. Id. at 900.

¶23In the classic case of battery given as a lesser-included offense for intermediate aggravated battery, the question for the jury is whether the victim suffered great bodily harm or merely bodily harm. Here, however, the question of the degree of bodily harm is not at issue because it is undisputed that there was great bodily harm. Therefore, we hold that the trial court properly concluded that the lesser-included battery offense was not appropriate because the degree of harm does not support acquittal on the greater charge and conviction on the lesser charge. Wilson, 149 Wis. 2d at 898.

¶24Glenn argues that while the resulting harm constituted great bodily harm, the jury could believe that his actions did not cause it. This argument ignores the fact that Glenn was charged as party to the crime of intermediate aggravated battery.

¶25The State's information did not specifically identify the alternative basis of liability under § 939.05 upon which it was relying to prove Glenn's guilt. Therefore, pursuant to Wis JI — Criminal 400 (1962)5, the jury was instructed that Glenn was guilty of the aggravated assault if he directly committed it, intentionally aided and abetted the commission of it, or was a party *587to a conspiracy with another to commit it. We are in accord with the position of the State that its proof did not depend on Glenn's participation in the chase.

¶26We disagree with the court of appeals that Maycontrols this case. In May, the court of appeals concluded in part that an aider and abettor cannot withdraw from a completed act of assistance. May, 91 Wis. 2d at 549-50. The court of appeals in the present case relied on this holding and concluded that if Glenn participated in the battery but did not pursue Massaro, he still was a co-actor aiding the subsequent acts of any of his accomplices who did pursue Massaro and caused him to jump into the lake. Glenn, 190 Wis. 2d at 164.

¶27Upon reviewing May, this court recognized that in holding that an aider and abettor cannot withdraw his or her aid and avoid liability, the court of appeals decided an issue that was not before it. As a result, this court neither endorsed nor rejected that holding because it was not properly before this court. May, 97 Wis. 2d at 188-89. Likewise, the State did not believe that the issue was presented here, as it did not rely on Mayin its arguments.

¶28Despite its holding, the court of appeals recognized that the facts of Mayare "quite different." Glenn, 190 Wis. 2d at 165. In May, the defendant arranged a drug transaction between his companion and a person who proved to be an undercover agent. However, the defendant later changed his mind and told his companion to abandon the transaction because he suspected police involvement. The defendant did not participate in the delivery and received nothing from the transaction. May, 91 Wis. 2d at 544-46.

¶29Therefore, the question for the court of appeals was whether the defendant could withdraw from a conspiracy to commit a specific, intended crime. Here, the *588issue is whether liability under § 939.05 extends to an unintended crime that develops from an intended crime. We agree with Glenn that this case is most analogous to those cases where the defendant is alleged to be guilty as party to a crime on the theory that he or she intentionally aided and abetted in a crime or conspired in the commission of a crime, of which the charged crime is a natural and probable consequence. See State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984); State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977); State v. Cydzik, 60 Wis. 2d 683, 211 N.W.2d 421 (1973). In such cases this court has held that "one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts." Asfoor, 75 Wis. 2d at 430, citing Cydzik, 60 Wis. 2d at 696-98.

¶30The question of whether the act committed was the natural and probable consequence of the act encouraged is a factual question for the jury. Asfoor, 75 Wis. 2d at 431, quoting People v. Durham, 449 P.2d 198, 204, cert. denied, 395 U.S. 968 (1969). Glenn argues that this factual question for the jury would have been embodied by a lesser-included offense instruction on simple battery.

¶31Contrary to Glenn's argument, this court has held that:

[i]f the Asfoor-Cydzik theory of liability of an aider and abettor is implicated in a particular case, the jury should be instructed that the defendant's liability as an aider and abettor extends to any crime that was committed as a natural and probable consequence of the intended criminal acts, as well as *589the crime the defendant knowingly aided and abetted.

¶32Ivy, 119 Wis. 2d at 602. Accordingly, we disagree with Glenn that the lesser-included battery offense constituted an appropriate substitute for the instruction suggested by this court in Ivy. Glenn was charged with party to the crime of intermediate aggravated battery. The choices for the jury were to acquit him of the charge if it found that the chase and jump into the lake was not a natural and probable consequence of the intended battery or to find him guilty as an aider and abettor or conspirator.

¶33We recognize that this court's suggested instruction in Ivywas given in this case only within the context of the conspiracy instruction for liability under party to a crime, not within the instruction regarding aiding and abetting. However, as the court of appeals properly noted, Glenn failed to request such an instruction. The failure to object to a proposed jury instruction constitutes waiver of any error. Wis. Stat. § 805.13(3). In Interest of C.E.W., 124 Wis. 2d 47, 54, 368 N.W.2d 47 (1985).

¶34We also recognize that we may consider erroneous instructions to which objection was not properly preserved for appellate review based on our discretionary reversal authority set forth in § 751.06. C.E.W., 124 Wis. 2d at 55; Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis. 2d 301, 296 N.W.2d 749 (1980). However, we do not feel compelled, as does the dissent, to further review the intermediate battery instruction, which Glenn has never challenged at any level in this case. See generally Justice Geske's dissent. The dissent would apparently exercise this court's discretionary *590review to reverse and remand this case for a new trial. See State v. Zelenka, 130 Wis. 2d 34, 44, 387 N.W.2d 55 (1986). It contends that the intermediate battery instruction advised the jury to convict Glenn simply if another person committed the crime. The dissent concludes that we must reverse and remand because such an error affects Glenn's fundamental rights under the Due Process Clause. Justice Geske's dissent at 596.

¶35We reiterate that even when a substantive constitutional right is involved, § 805.13(3) requires an objection to the proposed jury instructions be made or any error is waived. State v. Damon, 140 Wis. 2d 297, 302, 409 N.W.2d 444 (Ct. App. 1987). However, even if we were to exercise our discretionary review authority to consider the intermediate battery instruction sua sponte, we would not conclude that the error identified by the dissent mandates reversal.

¶36It is well established that when reviewing challenges to jury instructions, we do not view a single instruction to a jury in artificial isolation. Zelenka, 130 Wis. 2d at 49. Rather, if jury instructions, when considered as a whole and in their entirety, render an error harmless because the overall meaning communicated by the instruction was a correct statement of the law, there are no grounds for reversal based on that error. State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982).

¶37In this case, the party to a crime instruction was given immediately before the intermediate aggravated battery instruction. Further, the jury was instructed that the information charged Glenn with intermediate aggravated battery, party to a crime, and that the *591State must prove every element of the offense beyond a reasonable doubt.6 This directed the jury that it must find that Glenn was either a direct actor, aider and abettor or conspirator in the intermediate aggravated battery. Therefore, upon reviewing the instructions in their entirety, we disagree with the dissent that "the clear instruction to the jury was to convict this defendant even if the jury was convinced beyond a reasonable doubt that 'another' had committed the crime of intermediate aggravated battery."7 Justice Geske's dissent at 595-96.

¶38*592In sum, while we agree with the court of appéals that the trial court properly instructed the jury, we expressly do not adopt its rationale that Mayprovides the proper basis for doing so. Instead, we agree with the trial court's rationale that the undisputed great bodily harm precludes a lesser-included battery offense instruction in this case.

¶39By the Court. — The decision of the court of appeals is modified, and as modified, affirmed.