COURT OF APPEALS
DATED AND FILED
April 27, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Michael D. Below,
from a judgment of the circuit court for Washington County: andrew
T. gonring, Judge. Affirmed.
Neubauer, P.J., Anderson
and Reilly, JJ.
¶1 ANDERSON, J. Michael
D. Below appeals from a judgment of conviction for first-degree reckless
homicide and physical abuse of a child arising out of the August 2008 abuse
which led to the death of his infant daughter, Madison. He argues that the trial court erred in
denying his motion for an intervening cause instruction. We disagree.
The evidence showing that Below’s actions were a substantial factor in Madison’s death is
sufficient to support the jury’s verdict.
Additionally, the trial court’s decision to deny Below’s requested jury
instruction was not an erroneous exercise of discretion. We affirm.
Standard of Review
¶2 In reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its judgment for that of the
trier of fact unless the evidence, viewed most favorably to the state and the
conviction, is so lacking in probative value and force that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451
N.W.2d 752 (1990). If any possibility
exists that the trier of fact could have drawn the appropriate inferences from
the evidence adduced at trial to find the requisite guilt, an appellate court
may not overturn a verdict even if it believes that the trier of fact should
not have found guilt based on the evidence before it. Id.
¶3 We will not sit as a jury making findings of fact and
applying the hypothesis of innocence rule de novo to the evidence presented at
trial: “It is not the role of an
appellate court to do that.” Id. at
505-06; see also State v. Watkins, 2002 WI 101, ¶77, 255 Wis. 2d 265, 647 N.W.2d 244. Indeed, we will only substitute our judgment
for that of the trier of fact when the fact finder relied upon evidence that
was inherently or patently incredible—that kind of evidence which conflicts
with the laws of nature or with fully established or conceded facts. State v. Tarantino, 157 Wis. 2d 199, 218, 458
N.W.2d 582 (Ct. App. 1990).
¶4 Additionally, the trier of fact is the sole arbiter of the
credibility of witnesses and alone is charged with the duty of weighing the
evidence. See Poellinger, 153 Wis.
2d at 506. When more than one inference
can reasonably be drawn from the evidence, the inference which supports the
trier of fact’s verdict must be the one followed on review unless the evidence
is incredible as a matter of law. See State v. Allbaugh, 148 Wis. 2d 807, 809, 436 N.W.2d 898 (Ct. App.
1989). It is exclusively within the
trier of fact’s province to decide which evidence is worthy of belief, which is
not, and to resolve any conflicts in the evidence. Id. at
810. The standard for review is the same
whether the verdict is based on direct or circumstantial evidence. Id.
First-Degree Reckless Homicide
¶5 A person is guilty of first-degree reckless homicide when he
or she “recklessly causes the death of another human being under circumstances
which show utter disregard for human life.”
Wis. Stat. § 940.02(1)
(2009-10). There are three elements to this
offense: (1) the defendant caused the
(2) he or she did so by criminally reckless conduct, and (3) the circumstances of
the defendant’s conduct showed utter disregard for human life. Wis JI—Criminal 1020.
¶6 A person engages in “criminal recklessness” if his or her
actions create an “unreasonable and substantial risk of death or great bodily
harm” to another and the actor was aware that his or her conduct created such a
Stat. § 939.24(1). Thus, the
recklessness element requires both the creation of an objectively unreasonable
and substantial risk of human death or great bodily harm and the actor’s subjective
awareness of that risk. See Wis.
Stat. Ann. § 939.24,
Judicial Council Committee Note, 1987 S.B. 191 (West 2011).
¶7 The facts are not in dispute.
Madison Below died on August 23, 2008.
Twelve days earlier, on August 11, Madison
was brought to St. Joseph’s
Hospital emergency room and treated by Dr. Mary Lewis. Lewis testified that Madison had severe injuries to the entire
brain, a skull fracture and bleeding around her eyes. Lewis determined that Madison’s brain injuries were
irreversible. Because of the severity of
the injuries, Lewis transferred Madison to
¶8 At Children’s Hospital, Madison
was examined by Dr. Thomas Valvano. In
addition to her severe brain injury, Valvano discovered that Madison had healing rib fractures on both
sides of her rib cage indicating prior abuse.
Valvano learned from Madison’s
parents—Below and Michelle Hugg—that two to three weeks earlier, Madison was admitted to
the hospital for a bruised or swollen upper lip. Below said Madison had fallen forward and bumped her
mouth on the television remote. Below
also said a couple weeks before she was admitted, Madison’s
left temple was injured when Madison
bumped her head against the diaper wipes container. Below said he noticed another bruise on Madison’s forehead a couple days before she was admitted
and he thought it was from Madison
bumping her forehead against his ring.
In addition, Madison
had breaking blood vessels in the whites of both eyes and Below said he noticed
this about a week before her admission.
¶9 Valvano testified that when he first examined Madison, she had already
been put in intensive care, intubated, and placed on a ventilator. He described Madison’s “severe brain injury” as “so
devastating, so complete.” He testified
that both cerebral hemispheres of Madison’s
brain were severely injured and massive swelling blocked blood flow to the
brain. Madison had significant cerebral edema throughout
the entire brain and a significant loss of normal gray/white matter
distinction—loss of which is referred to as “black brain.” Madison’s
“fixed” pupils were “just another sign of the progression of the brain
injury.” Madison’s “complex skull fracture” covering
both sides of her head was indicative of a significant force to the brain,
rather than a simple single impact from a fall.
Finally, Valvano determined that Madison
had “an overwhelming and irreversible brain injury” which he understood to be
“ultimately why she died.”
¶10 West Bend Detective Robert Lloyd testified that he was called
into St. Joseph’s
hospital on August 11, 2008, to investigate a suspected child abuse
complaint. At the hospital, Lloyd made
contact with Below, who agreed to come to the police department to answer
questions. After giving Below his Miranda rights,
Lloyd questioned him, asking if he could remember any incidents where Madison had hurt herself
which would have led to her injuries.
Below described four separate injury-causing incidents he characterized
as accidents, but said they occurred two weeks to one month ago. Below then insisted that the day before was
uneventful, that Michelle went to work and he cared for Madison from about 5:40 p.m. until about 9:30
p.m. The interview concluded.
¶11 Soon after, when they were back at Children’s Hospital, Below
approached Lloyd and changed his story about what happened the day before
admitting Madison. Below told Lloyd that the day before he had
accidentally dropped Madison. He gave a written statement to that effect.
¶12 Below’s story changed again later that day when Lloyd and
Lieutenant Richard Lucka conducted another interview at the police
station. Below told the officers that he
might have “pushed” Madison
“faster to the floor” while trying to catch her when she fell. He picked up Madison and held her with his left hand
against the left side of his chest. He
said his hand “ha[s] a lot of strength” so he thought it was possible that he
may have squeezed Madison’s
head too hard when he was trying to get her to stop crying. When he laid Madison back down on the changing table, he
noticed a red spot on her head; he thought it was either from her fall or from
his own thumb.
¶13 At this point in the interview, the officers left the room to
call Valvano at Children’s Hospital.
Valvano told the officers “it was not possible” that Madison’s injuries were caused by the
incident as described by Below. The
officers then informed Below that Madison’s
doctor said it was not possible that her injuries resulted from what he
described. Upon hearing this, Below
changed his story yet again, saying that maybe Madison hit her head on the changing
table. The officers brought Below a doll
and asked him to elaborate and demonstrate what he meant. Below picked up the doll—which represented Madison—and held it upside
down with its feet between his thumb, index and middle fingers. He lifted the doll up about a foot from the
interview table—which represented the changing table—and struck its head on the
table, after which he laid the doll on its back and slid the doll’s head three
times into the wall—which represented the sides of the changing table.
¶14 After Below’s demonstration of how he repeatedly struck
Madison’s head on the changing table, the officers asked for and Below agreed
to give another written statement. In
the statement, Below revealed more details.
He reiterated that Madison
had fallen to the floor and that he tried to quiet her crying by holding her
head with his left hand against his chest.
He said after ten to fifteen minutes of crying he laid her on the
changing table and “she started getting really fussy and fighting with her
legs.” He said he got “frustrated” and
picked her up by her feet with one hand, her head was about one foot above the
changing table and he “pushed Madison
down on the changing table very hard. I
could hear her head hit the table. I
picked her up and did it again a couple of times.” On a scale of one to ten, with ten being the
hardest impact, he said he “hit Madison’s
head on the changing table about 8 to 9.”
He said he “just lost control and was frustrated.” Finally, Below said with regard to Madison’s older injuries he “may have caused [Madison’s] fractured
¶15 On August 13, 2008, a criminal complaint was filed charging
Below with two counts of physical abuse of a child as a repeater, count one
included intentionally causing great bodily harm to a child. The next day, August 14, Below wrote a letter
to Hugg telling her, “I can’t believe what I did myself to [Madison].”
He admitted that he “went crazy from all the shit that has gone on.”
¶16 A week after Madison’s admission
to Children’s Hospital, on August 18, 2008, a meeting was called by the medical
staff to update Madison’s
family on her condition. Thereafter, one
of the physicians reported that the “family decided, after asking very
appropriate questions, not to reintubate or use any resuscitative measures
should Madison fail extubation. She was
then extubated and did well afterwards….
She continued on her comfort medications.” Madison
died five days after extubation on August 23, 2008.
¶17 About one week after Madison’s
death, Below wrote another letter to Hugg admitting, “I just couldn’t control
my rage and believe you me I hate myself for what I did to my little
girl.” The next day, again by letter to
Hugg, Below admitted, “I lost control and took [Madison’s] life with my actions.” Finally, in a letter to Hugg dated September
5, Below admitted, “It was my actions th[at] lead [sic] to [Madison’s] death and I’ll never forgive
myself for it. [Madison] was our Flesh and Blood and I let my
worry and depression and anger get out of control.”
¶18 Waukesha county medical examiner
and forensic pathologist, Dr. Linda Biedrzycki, performed Madison’s autopsy. She testified that “Madison Below died as a
result of blunt head trauma.” Biedrzycki
said her most significant finding in determining how Madison’s injury occurred was the “striking”
finding she made of a “very large, complex skull fracture.” Madison’s
skull fracture and a fracture to her femur were consistent with the time of the
August 11 admission. However, rib
fractures were consistent with injury occurring about ten days to two weeks
before the August 11 admission. Associated with Madison’s large skull
fracture were other levels of injury inside her head, which included bleeding
over the surface of the brain (subdural hemorrhaging), bleeding closer to the
surface of the brain (subarachnoid hemorrhaging) and bruising to the brain
(cerebral contusions). These injuries
caused a “cascade of other events”:
brain swelling and thrombosis of Madison’s
veins in her head, as well as bruising above her eyes, nose, and right and left
temporal areas. “These bruises, because
of their location and symmetry, were caused when [Madison’s] brain inside [her] head hit the
ridges of [her] skull. So when [her]
skull was impacted causing the large fracture … that transmitted energy to the
very soft brain, which then hit the inside of the skull and caused those
bruises.” Biedrzycki further explained
that after a brain injury of this sort, an “unstoppable chain of events” occurs.
So I guess
this is like a story. You get the injury
and then it starts this sequence of horrible events in the brain that just go
on and on. And more brain dies and more
brain dies, and it’s—it is like an unstoppable chain of events.
¶19 Additionally, Biedrzycki testified that Madison’s skull and
brain injury was “[a]bsolutely” the ultimate cause of death and could not have
been caused by the removal of life support or medical intervention. She further explained that the decision to
not give water or food was “[a]bsolutely not” a proximate cause of Madison’s death because
the proximate cause of death is the injury or disease that starts the chain of
events that leads to the physiologic derangements that cause death: “Things started with the head injury. That’s what caused irreversible brain damage;
terminal brain damage you might say.
Palliative care was part of the therapy of that chain of events that
started with the injury.”
¶20 Washington county medical examiner, Kelly McAndrews, observed
the autopsy and listed in the death certificate Madison’s cause of death to be
“sustained blunt trauma to the head at the hands of another.”
¶21 Ophthalmic pathologist, Dr. Daniel Albert, examined Madison’s body and testified that the severe hemorrhaging
and retinal folds in both of Madison’s
eyes are “extremely suggestive” of “non-accidental head injury” not consistent
with a short fall.
¶22 On August 25, 2008, an amended criminal complaint charged Below
with first-degree reckless homicide and physical abuse of a child. Thereafter, Below filed a motion to instruct
on intervening cause. He requested that
the jury be told “that the termination of life support, on these unique facts,
may be, if the jury so decides, an intervening cause of death that relieves
Michael Below from responsibility of the death of Madison Below.” Below’s motion also sought an order permitting
him to present evidence that the termination of life support for Madison did not conform to applicable Wisconsin
¶23 The trial court denied the motion in its entirety explaining
that even if an intervening act is legally wrongful, if the State meets its
burden of proof, that wrongful act will not break the chain of causation
between Below’s actions and Madison’s death:
Whether the acts constitute medical malpractice or are
otherwise “legally wrongful” the analysis is the same. The State must still prove beyond a
reasonable doubt that the Defendant’s acts were a substantial factor in
death…. [E]ven if the Defendant can
establish that the termination of Madison’s life
support was “wrongful” under Wisconsin Law, that wrongful act would not break
the chain of causation between the Defendant’s actions and Madison’s subsequent death.
¶24 Below filed an interlocutory appeal with this court, which we
denied. The case proceeded to
trial. At the close of evidence, the
trial court again denied Below’s request for an intervening cause
instruction. It instructed the jury in
accordance with pattern instruction Wis JI—Criminal 1020 that the element of
“cause” for reckless homicide is established if the jury finds beyond a
reasonable doubt Below’s conduct was a “substantial factor” in bringing about
the child’s death. The court denied
Below’s motion to dismiss for insufficient evidence. The jury found Below guilty of one count of
first-degree reckless homicide and one count of physical abuse of a child. The trial court entered the judgment of
conviction accordingly. Below appeals.
¶25 On appeal, Below challenges the trial court’s denial of his
request for an intervening cause instruction.
He contends that there was not sufficient evidence at trial to convict
him of first-degree reckless homicide given the undisputed evidence that
Madison’s life support was withdrawn without her being diagnosed as “in a
persistent vegetative state.”
Discussion and Law
¶26 The trial court’s decision to deny the intervening cause of
death instruction was not clearly erroneous.
We are satisfied that the overwhelming medical and other evidence viewed
most favorably to the State and the conviction is sufficient to show that
Below’s undisputed intentional actions—his repeated striking of Madison’s head
against the changing table—were a substantial factor in causing Madison’s
death. That is the showing required
under Wisconsin law and the State proved it
beyond a reasonable doubt. See State
v. Oimen, 184 Wis.
2d 423, 435, 516 N.W.2d 399 (1994); see
also Cranmore v. State, 85 Wis.
2d 722, 771-75, 271 N.W.2d 402 (Ct. App. 1978);
State v. Serebin, 119 Wis. 2d 837, 846-47, 350 N.W.2d 65
(1984); State v. Glenn, 190 Wis.
2d 155, 168, 526 N.W.2d 752 (Ct. App. 1994); State
v. Block, 170 Wis.
2d 676, 682-84, 489 N.W.2d 715 (Ct. App. 1992).
¶27 Below cannot avoid the teachings of relevant Wisconsin
jurisprudence. And we are bound by precedent.
Cook v. Cook, 208 Wis. 2d 166, 189, 560
N.W.2d 246 (1997). In Wisconsin
criminal law, the term “causes” has a consistent, well-established meaning. Oimen, 184 Wis. 2d at 435. An actor causes death if his or her conduct
is a “substantial factor” in bringing about that result. Id.; Serebin,
119 Wis. 2d at 846-47; Cranmore, 85 Wis. 2d at 775. What is more, “[a] ‘substantial factor’ need not be the sole cause of death” for
one to be held legally culpable. Oimen,
184 Wis. 2d
at 436 (emphasis added).
¶28 Cranmore is particularly instructive. In Cranmore, three defendants were
convicted of first-degree murder after shooting an off-duty police
officer. Cranmore, 85 Wis. 2d at 728,
730. On appeal, the defendants argued
that the jury could reasonably have concluded that the death of the officer was
caused by the actions of his attending physicians in performing a nephrectomy
(removal of kidneys) and in discontinuing the respirator and the administration
of drugs to maintain blood pressure. Id. at
771. The defendants argued that it was
reversible error not to instruct the jury on the question of what constitutes
death or when it can be said to occur, as was requested by the defendants. Id. The State maintained that the
question of when death occurs is irrelevant and that its burden was met in
proving the gunshot wound inflicted by the defendants was a “substantial factor
in producing death.” Id. at 772. The State asserted that the defendants could
not be relieved of their liability for the death of the officer unless the
subsequent actions of the attending physicians could be found to be the sole
cause of death. Id.
¶29 We agreed with the State.
We held that we needed only to determine whether the jury could
reasonably be convinced from the evidence which it had a right to believe and
accept as true that the defendants were responsible for the death of the
officer. Id. at 774. We noted that there was “competent evidence
from which the jury could conclude, according to a common law theory of death
(blood circulation and pulmonary activity), or according to the ‘brain death
theory,’ that death occurred before the nephrectomy.” Id. The evidence was sufficient to establish cause
of death beyond a reasonable doubt. Id.
¶30 We explained that “the jury was not required to find, nor was
the state required to prove, that [the officer] was dead prior to the
performance of the nephrectomy.” Id. Significantly, we then clarified that “[e]ven
were we to find that the attending physicians were negligent in believing that
the officer was dead and that their negligence contributed to his death, this would not break the chain of causation
between the defendants’ acts and the consequent death.” Id. at
774-75 (emphasis added). Again, the
State is only required to prove beyond a reasonable doubt that the defendants’
acts were a substantial factor in producing the death. See id. at 775; see also Wis JI—Criminal 1020. Thus, noting that it was proved beyond any
possible doubt that the acts of the defendants were a substantial factor in
producing the officer’s death, we reiterated our holding that a finding on our
part of negligence by the physicians “would be insufficient to relieve the
defendants of responsibility for the death.”
Cranmore, 85 Wis.
2d at 775.
¶31 Below attempts to distinguish his case from Cranmore
pointing to the fact that in Madison’s
death, unlike in the officer’s, the intervening act was indisputably
intentional and arguably illegal. We are
hard pressed to understand why Below contends that the categorization of the
intervening act has any
significance. Indeed, in Cranmore
we determined that the intervening act’s categorization was so
immaterial to our determination that it was left undecided. See id. at 775. Furthermore, we made clear that even if we
had categorized the intervening act as negligent, this fact would not be sufficient to relieve a
defendant of his or her culpability when it is proved beyond a reasonable
doubt that the defendant’s acts were a substantial factor in producing the
death. See id.
¶32 Below disavows the relevance of the controlling authority and
looks to noncontrolling case law for support.
Citing a court of appeals decision out of New York,
Below opines how “unfair” it is to hold him responsible for Madison’s death:
[W]rongly terminating life support is the type of
purposeful conduct that is not foreseeable by the initial actor, and
distinguishes [Below’s] facts from those in Cranmore[, 85 Wis. 2d at 771-75]. While Below’s acts exposed his daughter to
numerous medical procedures, with their predictable and attendant risks, it is
unfair to hold him responsible for the withdrawal of medical treatment that purposely
terminated her life.
Again, Below does not contend
that the State failed to prove he repeatedly struck his daughter’s head against
the changing table, causing her to suffer from severe skull injuries and
irreversible brain damage. Rather, he argues
that the State failed to prove his reckless conduct was a substantial factor in
bringing about Madison’s
death. As we have clarified, the
controlling law not only does not support Below’s argument, it levels it.
¶33 Under Wisconsin
law, whether the intervening act was negligent, intentional and/or legally
wrongful is irrelevant. The analysis is
the same. The State must still prove
beyond a reasonable doubt that the defendant’s acts were a substantial factor
in producing the death. Therefore, the
trial court’s denial of Below’s motion, including the intervening cause
instruction, was altogether proper. Even
if Below could have established that the termination of Madison’s
life support was “wrongful” under Wisconsin law, that wrongful act would not
break the chain of causation between Below’s actions and Madison’s subsequent death. We are satisfied that the trial court’s
well-reasoned decision to deny the motion was based on the law. Moreover, the overwhelming evidence supports
the jury’s finding beyond a reasonable doubt what the State successfully
proved: Below’s actions were a
substantial factor in causing Madison’s
By the Court.—Judgment affirmed.