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State v. Glynn6/4/1998
Crystal Glynn appeals from a judgment convicting her of first-degree reckless homicide and first-degree reckless endangering safety. The issues are whether the trial court erroneously exercised its discretion when it gave the standard jury instruction on utter disregard for human life and when it allowed testimony of a prior act. We affirm.
THE JURY INSTRUCTION
Glynn contends that the standard instruction for utter disregard for human life given by the trial court does not adequately state the law. The instruction given by the trial court was: "In determining whether the conduct showed utter disregard for human life, you should consider all the factors relating to the conduct. These include the following: what the defendant was doing; why she was doing it; how dangerous the conduct was; and whether the conduct showed any regard for human life." Wis J I-Criminal 1020 and 1345.
On appeal, Glynn revives the argument she made to the trial court that the instruction should be changed by eliminating the word "and" prior to the last factor and replacing it with: "But, if the defendant's conduct showed any regard for human life, you should not find the conduct to be an utter disregard for human life." The trial court refused to change the standard instruction, stating that when the jury is instructed to find beyond a reasonable doubt on the utter disregard element, one of the factors they are directed to consider is whether the conduct showed any regard for human life. We agree that this is sufficient.
A trial court has wide discretion to issue jury instructions. State v. Roubik, 137 Wis.2d 301, 308, 404 N.W.2d 105, 108 (Ct. App. 1987). This court will not find error in the refusal to give an instruction as long as the given instructions adequately cover the law applicable to the facts. Id. at 308-09, 404 N.W.2d at 108. Glynn argues that Balistreri v. State, 83 Wis.2d 440, 265 N.W.2d 290 (1978), requires that the court change the instruction to state that any evidence showing a regard for human life must defeat the utter disregard standard.
In Balistreri, the supreme court did not create a new standard for determining whether a defendant's conduct showed utter disregard for human life. The court there simply considered whether the facts of that case established that the defendant had acted with utter disregard for human life. The court concluded that the evidence did not establish that the defendant had acted with utter disregard for human life. The court stated that while the defendant's conduct was imminently dangerous, it could not conclude that the conduct was devoid of some regard for the life of the victim. Balistreri, 83 Wis.2d at 458, 265 N.W.2d at 298. Consequently, the court ruled that the conviction had to be set aside. Id. The court merely applied the established standard to the facts before it to determine that the State had not met its burden of proof.
Glynn attempts to draw a comparison between the facts of Balistreri and those of her own case to support her argument that Balistreri requires a change in the language of the jury instruction. The facts of Balistreri, however, are significantly different from these facts. The defendant in Balistreri was involved in a high speed police chase. Balistreri, 83 Wis.2d at 452, 265 N.W.2d at 295. There was evidence offered, however, that he swerved to avoid pedestrians, honked his horn, flashed his headlights, and at the time of the collision he had slowed to a speed of five to ten miles per hour. Id. at 452-53, 265 N.W.2d at 296. The person with whom he collided suffered only minor damage both to himself and his vehicle. Id. at 453, 265 N.W.2d at 296. The defendant testified that he was pay
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