COURT OF APPEALS

DECISION

DATED AND FILED

June 2, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

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. 

Appeal No. 2020AP387-CR Cir. Ct. No. 2017CF3732

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMMANUEL SANCHEZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: DAVID L. BOROWSKI, Judge. Affirmed. 

Before Dugan, Graham and Donald, JJ. 

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2020AP387-CR

2

¶1 PER CURIAM. Emmanuel Sanchez appeals his judgment of 

conviction for first-degree intentional homicide and knowingly violating a 

domestic abuse injunction. Sanchez argues that the trial court erred in denying his 

request that the jury be given an instruction on second-degree reckless homicide. 

Assuming without deciding if the trial court erred in not giving the requested

instruction, we conclude that any such error was harmless, and we affirm.

BACKGROUND

¶2 Sanchez was charged with first-degree intentional homicide and 

knowingly violating a domestic abuse injunction for his involvement in the death 

of his ex-girlfriend, C.L. The complaint alleged that, on August 11, 2017, officers 

were called to the residence at 1510 South 25th Street in the City of Milwaukee 

regarding a reported stabbing. The officers found C.L. lying on her back on the 

floor with a butcher knife sticking out of her chest. 

¶3 C.L.’s two roommates were at the scene and told police that, on the 

night of the stabbing, C.L. was preparing to go on a date with someone she had

just met.1 C.L. told her roommates that she was leaving and walked out of the 

living room. The roommates then heard C.L. screaming for help. The roommates 

found C.L. in the bathroom with Sanchez over her. C.L. was lying in the bathtub 

and trying to push Sanchez off her. One of the roommates struggled with Sanchez 

and chased him out of the house. When that roommate returned, C.L. was 

 

1

 The complaint also states that one of the roommates said that both roommates agreed to 

move in with C.L. to provide her with extra support and protection from Sanchez. 
No. 2020AP387-CR

3

standing in the kitchen with a knife sticking out of her chest—she was trying to 

pull the knife out.2 The roommates convinced C.L. to lie down on the floor. 

¶4 The complaint further alleged that, while paramedics were at the 

residence, the police received a 911 call from Sanchez’s brother, J.S. J.S. told 

police that Sanchez begged him to pick Sanchez up at a park, where he was 

hiding. When he picked him up, Sanchez told J.S. that he had stabbed C.L. and 

wanted to kill himself. While J.S. was calling 911, Sanchez jumped out of the car 

and ran off. 

¶5 The matter proceeded to a jury trial, and the testimony of C.L.’s 

roommates and Sanchez’s brother was consistent with the allegations in the 

complaint. 

¶6 At the close of evidence, the trial court held a jury instruction 

conference, where it heard arguments from the parties regarding the appropriate 

jury instructions that should be given to the jury.3 Trial counsel argued that the 

jury should be instructed on second-degree reckless homicide because C.L.’s 

fingerprints were on the knife, the evidence was inconclusive whether Sanchez 

touched the handle of the knife—one theory was that C.L. had the knife first and 

she and Sanchez were struggling over the knife, and the knife went into C.L. when

 

2

 The complaint stated that an investigation indicated that the knife was not from C.L.’s 

residence, and the roommates confirmed in their testimony at trial that they did not recognize the 

knife.

3

 Sanchez waived his right to testify and did not testify.
No. 2020AP387-CR

4

they both fell into the tub together—and that does not establish utter disregard for 

human life.

4

 

¶7 The State objected to the request for a jury instruction on seconddegree reckless homicide. It argued that the rational inference from the evidence 

was that Sanchez broke into the house through a window and crept up the stairs 

and met C.L. at the top of the stairs as she was leaving, stabbed her in the chest 

and forced her into the tub. The trial court responded saying, “Let me jump in.” It 

stated that it could see how a rational jury could possibly come to a conclusion of 

first-degree reckless homicide as opposed to a first-degree intentional homicide. It 

then stated that “[t]he conduct engaged in by the defendant either was absolutely 

first-degree intentional homicide ... or there may have been some level of 

confrontation .... But, in either event, it certainly showed utter disregard for 

human life[.]” It then told the parties that it would give the jury instructions for 

first-degree intentional homicide and first-degree reckless homicide, but would not 

give the instruction of second-degree reckless homicide because it was not 

appropriate under the facts of the case.

¶8 The trial court then instructed the jury on both first-degree 

intentional homicide and first-degree reckless homicide. The jury found Sanchez 

guilty of first-degree intentional homicide and knowingly violating the domestic 

abuse injunction. 

 

4

 The distinction between first-degree reckless homicide and second-degree reckless 

homicide is that second-degree reckless homicide does not include the element of “utter disregard 

for human life.” WISCONSIN STAT. § 940.02(1) (2017-18)—first-degree reckless homicide—

provides “[w]hoever recklessly causes the death of another human being under circumstances 

which show utter disregard for human life is guilty[.]” However, WIS. STAT. § 940.06 (2017-

18)—second-degree reckless homicide—provides “[w]hoever recklessly causes the death of 

another human being is guilty[.]”
No. 2020AP387-CR

5

¶9 Sanchez now appeals and argues that “[d]enial of his request for a 

lesser-included offense jury instruction on second-degree reckless homicide was 

prejudicial error.”

5

DISCUSSION

A. Standard of review

¶10 “While this court gives the circuit court broad discretion 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.” State v. Glenn, 199 Wis. 2d 575, 581-82, 545 

N.W.2d 230 (1996).

B. Legal principles

¶11 In assessing whether to grant a lesser-offense jury instruction, “the 

court must first determine whether ‘the lesser offense is, as a matter of law, a 

lesser included offense of the crime charged.’” See State v. Fitzgerald, 2000 WI 

App 55, ¶8, 233 Wis. 2d 584, 608 N.W.2d 391 (citation omitted). “If so, then the 

court considers whether the evidence justifies the instruction.” Id. In this case,

the State concedes that where first-degree intentional homicide is charged, both 

first-degree reckless homicide and second-degree reckless homicide are lesserincluded offenses of first-degree intentional homicide. As to the second step in 

 

5

 We note that although Sanchez’s notice of appeal states that he appeals from the 

judgment of conviction and sentence against him, on appeal Sanchez does not raise any issue 

regarding his conviction on the charge of knowingly violating the domestic abuse injunction or 

his sentence. Therefore, he has abandoned any argument regarding those issues, if any. See A.O. 

Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491-92, 588 N.W.2d 285 (Ct. App. 1998).
No. 2020AP387-CR

6

determining whether to grant the lesser-included offense instruction, namely 

whether the evidence justifies the instruction, Sanchez argues that the evidence 

justifies giving the instruction, and the State argues that it does not.

C. Any error in the trial court not giving the seconddegree reckless homicide jury instruction was 

harmless

¶12 The State argues that, even if there was an evidentiary basis to 

support giving a second-degree reckless homicide jury instruction, any error in the 

court not giving the instruction was harmless because the jury convicted Sanchez 

of the greater offense—first-degree intentional homicide.

6

 The State asserts that

the jury does not consider a lesser offense until it decides to acquit the defendant 

on the greater charge.7 See WIS JI—CRIMINAL 112; State v. Truax, 151 Wis. 2d 

354, 361-63, 444 N.W.2d 432 (Ct. App. 1989). It then asserts that because the 

jury found Sanchez guilty of first-degree intentional homicide, it never even 

considered the first-degree reckless homicide offense that it was given. It then 

argues that even if the jury had been given a second-degree reckless homicide 

instruction, the jury never would have considered it. See Truax, 151 Wis. 2d at

 

6

 We note that the State first argued that, based on the evidence introduced at trial, the 

trial court did not err in concluding that the jury instruction was not justified. Based upon our 

decision today, we need not address the State’s argument. 

7

 We note that the State misstates when the jury considers the lesser-included offense. 

The jury need not decide to acquit the defendant on the greater charge before considering the 

lesser-included instruction. As stated in WIS JI—CRIMINAL112, “if after full and complete 

consideration of the evidence, you conclude that further deliberation would not result in a 

unanimous agreement on the charge of [first-degree intentional homicide], you should consider 

whether the defendant is guilty of [first-degree reckless homicide].” The trial court in this case

read a substantially similar instruction to the jury and stressed that only after the jury “fully and 

completely considered the evidence [and] you conclude that further deliberations would not result 

in a unanimous agreement of the charge of first-degree intentional homicide, then, and only then, 

you should consider whether the defendant is guilty of first-degree reckless homicide.” 
No. 2020AP387-CR

7

361-63. The State then argues that even if there had been an evidentiary basis to 

support an instruction on second-degree reckless homicide, any error in not giving 

the instruction was harmless. See id. at 356.

¶13 In Truax, the jury was instructed on first-degree murder and the 

lesser-included second-degree murder, and it found Truax guilty of first-degree 

murder. Id. at 358. On appeal, Truax argued that the trial court erred in refusing 

to instruct the jury on the lesser-included offense of homicide by reckless conduct. 

Id. at 361. The Truax court concluded that “under the facts of this case, and

considering that the jury was given instructions on both first-degree and seconddegree murder and found Truax guilty of the greater offense, any error by omitting 

the instruction [homicide by reckless conduct] was harmless.” Id. at 356. It 

explained that it was persuaded by the Florida Supreme Court’s decision in 

State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978), which stated:

[I]f a defendant is charged with offense “A” of which “B” 

is the next immediate lesser-included offense (one step 

removed) and “C” is the next below “B” (two steps 

removed), then when the jury is instructed on “B” yet still 

convicts the accused of “A” it is logical to assume that the 

panel would not have found him guilty only of “C” (that is,

would have passed over “B”), so that the failure to instruct 

on “C” is harmless.

Truax, 151 Wis. 2d at 364.

¶14 In this case Sanchez was charged with first-degree intentional 

homicide and the trial court instructed the jury on first-degree intentional homicide 

and first-degree reckless homicide—it did not instruct the jury on second-degree 

reckless homicide. The jury found Sanchez guilty of first-degree intentional 

homicide.
No. 2020AP387-CR

8

¶15 In his reply brief Sanchez does not even mention Truax, let alone 

attempt to distinguish the case or refute the State’s harmless error argument. 

Therefore, Sanchez has conceded his argument about instructional error because 

he failed to include an argument in his reply brief to refute the State’s argument in 

its response brief. See United Coop. v. Frontier FS Coop., 2007 WI App 197, 

¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (stating that the failure to refute a 

proposition asserted in a response brief may be taken as a concession). We, 

therefore, decline to address the merits of Sanchez’s argument that the trial court 

erred in not giving the instruction on second-degree reckless homicide.

CONCLUSION

¶16 In sum, assuming without deciding if the trial court erred in not 

giving a jury instruction on second-degree reckless homicide, we conclude that 

any such error would be harmless. Thus, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.