Wis JI-Criminal 1021

Statutory Definition of the Crime

First degree reckless homicide, as defined in § 940.02(2) of the Criminal Code of

Wisconsin, is committed by one who causes the death of another human being by delivery2

of a controlled substance in violation of § 961.41, which another human being uses and

dies as a result of that use.3

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence that satisfies you beyond a reasonable doubt that the following five elements4

were present.

Elements of the Crime that the State Must Prove

1. The defendant delivered5 a substance.

“Deliver” means to transfer something from one person to another.6

2. The substance was by itself or contained (name controlled substance).7

[(Name statutorily listed controlled substance) is a controlled substance, the

delivery of which is prohibited by law.]

3. The defendant knew or believed that the substance was by itself or contained

[(name controlled substance)] [a controlled substance. A controlled substance is a

substance the delivery of which is prohibited by law.]8

You cannot look into a person’s mind to determine knowledge or belief. You

may determine knowledge or belief directly or indirectly from all the evidence

concerning this offense. You may consider any statements or conduct of the

defendant which indicate state of mind. You may find knowledge or belief from

such conduct or statements, but you are not required to do so.

4. (Name of victim) used the substance alleged to have been delivered by the

defendant.

5. (Name of victim) died as a result of the use of that substance.

This requires that the use of the controlled substance was a substantial factor

in causing the death.9

[A substantial factor need not be the sole or primary factor causing death.]10

[There may be more than one cause of death. The use of one substance may

produce it, or the use of two or more substances might jointly produce it.]11

IF THE SUBSTANCE ALLEGED TO HAVE BEEN DELIVERED BY THE

DEFENDANT IS A COMPOUND, MIXTURE, DILUENT, OR OTHER

SUBSTANCE MIXED OR COMBINED WITH A CONTROLLED

SUBSTANCE, ADD THE FOLLOWING:

[Whether the substance is a (controlled substance) (controlled substance analog) by

itself, or a mixture or combination of a (controlled substance) (controlled substance analog)

with any compound, mixture, diluent or other substance is not relevant as long as (name of

victim) died as a result of using the substance.]12

IF DELIVERY BY MORE THAN ONE PERSON IS INVOLVED, ADD THE

FOLLOWING:13

[It is not required that the defendant delivered the substance directly to (name of

victim). If possession of the substance was transferred more than once before it was used

by (name of victim), each person who transferred possession of that substance has

delivered it.]

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant delivered (name

controlled substance), that the defendant knew that the substance was by itself or contained

[(name controlled substance)] [a controlled substance],14 that (name of victim) used the

substance delivered by the defendant, and that (name of victim) died as a result of that use,

you should find the defendant guilty of first degree reckless homicide.

If you are not so satisfied, you must find the defendant not guilty.