2021 WI 61

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP2318-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Alan M. Johnson,

 Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 393 Wis. 2d 688, 948 N.W.2d 377

PDC No:2020 WI App 50 - Published

OPINION FILED: June 16, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 19, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Walworth 

JUDGE: Kristine E. Drettwan 

JUSTICES:

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, 

JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which 

ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶38-

40, 42-60, and 67-85.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant, there was a brief filed by 

Catherine E. White, Stephen P. Hurley, Jonas B. Bednarek, Marcus 

J. Berghahn and Hurley Burish, S.C., Madison. There was an oral 

argument by Catherine E. White.

For the plaintiff-respondent-petitioner, there were briefs 

filed by Timothy M. Barber, assistant attorney general; with whom 

on the brief was Joshua L. Kaul, attorney general. There was an 

oral argument by Timothy M. Barber. 

2021 WI 61

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP2318-CR

(L.C. No. 2016CF422)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Alan M. Johnson,

 Defendant-Appellant.

FILED

JUN 16, 2021

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the Court, in which 

ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. 

ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, 

J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30-

48.

REVIEW of a decision of the Court of Appeals. Affirmed in 

part, reversed in part.

¶1 BRIAN HAGEDORN, J. In the middle of the night, Alan M. 

Johnson snuck into the home of his brother-in-law (K.M.) seeking

evidence of child pornography. Johnson brought a gun. After 

searching K.M.'s computer for more than two hours, K.M. appeared 

in the doorway and saw Johnson. K.M. shut the door, as Johnson 

described it, and then burst through the door and attacked. The 
No. 2018AP2318-CR

2

ensuing altercation left K.M. dead; he was shot five times. A

jury found Johnson guilty of first-degree reckless homicide. 

Johnson appealed his conviction, and the court of appeals ruled in 

his favor and ordered a new trial.1 

¶2 Three issues are presented for our review. First, did 

the circuit court2 err in failing to instruct the jury on perfect 

self-defense? Second, did the circuit court err in failing to 

instruct the jury on the lesser included offense of second-degree 

reckless homicide? And finally, did the circuit court err in 

precluding Johnson from offering evidence regarding what he found 

on K.M.'s computer the night of K.M.'s death? The court of appeals 

ruled in Johnson's favor on all three questions.

¶3 We agree the circuit court erred in failing to instruct

the jury on perfect self-defense and second-degree reckless 

homicide. When determining whether these instructions should be 

provided, the evidence is viewed in the light most favorable to 

the defendant, and the instruction must be provided if evidence is 

presented from which a reasonable jury could find in the 

defendant's favor on the instructed elements. The evidence 

presented at trial was sufficient to satisfy this low evidentiary 

bar. We affirm the decision of the court of appeals on these 

grounds and remand for a new trial.

 

1 State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 

N.W.2d 377.

2 The Honorable Kristine E. Drettwan, Walworth County Circuit 

Court, presiding.
No. 2018AP2318-CR

3

¶4 However, we conclude the circuit court properly 

exercised its discretion in precluding Johnson from testifying 

regarding what he found on K.M.'s computer that night. The circuit 

court concluded this other-acts evidence was not relevant, and 

even if it was, the probative value of the evidence would be 

substantially outweighed by the danger of unfair prejudice. While 

another court might see it differently, this was a permissible and 

reasonable conclusion, particularly since Johnson was permitted to 

testify regarding why he was at K.M.'s house and that he "found" 

what he was looking for. Accordingly, we reverse the decision of 

the court of appeals on this ground.

I. BACKGROUND

¶5 Johnson testified in his own defense at trial. His 

testimony is the only narrative the jury heard of what happened 

the night K.M. died. Since our review is largely centered on a 

view of the evidence most favorable to Johnson, his testimony forms

the substantial basis of our analysis. The following is Johnson's 

side of the story.

¶6 Johnson's oldest sister married K.M. when Johnson was a 

child; his relationship with K.M. was strained from the beginning. 

Johnson feared K.M. from the age of ten onward. Repeatedly, K.M.

verbally and physically abused Johnson, and on one occasion,

sexually abused him. Johnson also witnessed K.M. physically abuse 

his youngest sister and K.M.'s son.
No. 2018AP2318-CR

4

¶7 Years prior to K.M.'s death, Johnson discovered what he 

believed was child pornography on K.M.'s computer.3 Eventually, 

Johnson reported this to the authorities, but was told that the 

evidence was "stale." Johnson then told his father, who confronted 

K.M. K.M. told Johnson's father the pornography was "moved." 

Despite several requests by Johnson's father to attend therapy, 

K.M. never went. This caused Johnson to fear for the safety of 

his nieces.

¶8 Around 11:45 p.m. on the night of October 24, 2016, 

Johnson went to K.M.'s home intending to discover "fresh pictures" 

of child pornography on K.M.'s computer to deliver to the police. 

Johnson believed that K.M. could overpower him if anything 

happened, so he brought a gun to protect himself. He entered 

through the unlocked back door and proceeded to the computer room. 

Johnson closed the door and searched K.M.'s computer for over two

hours. As a result of his search, Johnson intended to turn what 

he discovered over to the police because he "found what they 

needed."

¶9 After the calendar flipped to October 25, at around 2:00 

a.m., Johnson heard a "scuff" from somewhere in the house. Then, 

in Johnson's words: "I closed the Windows that I had opened on 

the computer . . . and I got up, I grabbed the gun. I got 

everything that I had with me." As he was leaving, the door opened 

 

3 Johnson testified that his sister, KM's wife, asked him to 

find a file she downloaded on KM's computer. While attempting to 

locate the missing file, Johnson found what he believed was child 

pornography.
No. 2018AP2318-CR

5

and Johnson saw K.M. standing in the doorway without a shirt. K.M.

then closed the door, leaving Johnson alone in the room. Johnson 

was afraid. When K.M. opened the door, "[h]e looked right at me, 

and he knew why I was there. I knew that he knew." Johnson wanted 

to leave, but the only exit was the door K.M. had just shut. He 

did not believe the windows in the room opened either, leaving him 

no way to escape. Then, Johnson explained, "the door flew open 

and [K.M.] attacked me. He just came right at me." And upon 

further probing, Johnson said, "[K.M.] lunged at me. I saw him 

come at me." When all was said and done, K.M. sustained five 

gunshot wounds and died. Exactly how this transpired was unclear 

even to Johnson. While he knew he shot K.M., Johnson did not 

remember seeing or hearing his gun fire and does not remember how 

he left the house.

¶10 Johnson denied knowing how K.M. died when questioned on 

two occasions later that day. But before the day ended, he 

confessed to killing K.M. Johnson was charged with first-degree 

intentional homicide, use of a dangerous weapon, and armed 

burglary.

¶11 During pretrial, Johnson moved to admit other-acts and 

McMorris evidence4 regarding K.M.'s past actions to support his 

 

4 "Evidence of a victim's violent character and past violent 

acts is often referred to as McMorris evidence." State v. Head, 

2002 WI 99, ¶24 n.5, 255 Wis. 2d 194, 648 N.W.2d 413. The phrase 

refers to McMorris v. State, where this court noted when "the issue 

of self-defense is sufficiently raised" evidence of the victim's 

"dangerous character or reputation" "is relevant in determining 

whether the victim or the accused was the aggressor." 58 

Wis. 2d 144, 149, 205 N.W.2d 559 (1973).
No. 2018AP2318-CR

6

claim of self-defense. The circuit court permitted Johnson to 

introduce evidence of K.M.'s past abusive conduct and evidence 

that Johnson previously found what he believed was child 

pornography on K.M.'s computer. However, the court prohibited 

Johnson from presenting evidence of precisely what he believed he 

found on K.M.'s computer the night K.M. died: images of naked 

underage girls and over 5,000 images of neighborhood girls.5 The 

court ruled that such evidence, regardless of whether it was child 

pornography, "is not relevant to the homicide, to any claim of 

self-defense or to the burglary charge." Furthermore, the court 

noted that even if this evidence was relevant, "it would fail under 

[Wis. Stat. §] 904.03" because "[i]t would be completely and 

unfairly prejudicial with little to no probative value other than 

to try and paint the victim in a bad light, and it certainly would 

not . . . substantially outweigh that unfair prejudice."

¶12 At the close of evidence, the circuit court instructed 

the jury on burglary, first-degree intentional homicide, seconddegree intentional homicide, first-degree reckless homicide, and 

imperfect self-defense. Johnson also requested, without success,

instructions on perfect self-defense, second-degree reckless 

homicide, and homicide by negligent use of a firearm. The circuit 

court refused to instruct on perfect self-defense because it

 

5 Johnson made an offer of proof that he would testify to this 

effect, providing more specifics with respect to the images he 

viewed that night. Johnson made an additional offer of proof that 

a computer analyst would testify to discovering images on the 

computer that to a lay person would appear to be child pornography.
No. 2018AP2318-CR

7

determined no reasonable person could conclude that Johnson 

satisfied either prong of the perfect self-defense standard. And 

the court did not instruct on second-degree reckless homicide on 

the grounds that Johnson's actions conclusively showed an utter 

disregard for human life.6

¶13 The jury found Johnson guilty of first-degree reckless 

homicide while armed with a dangerous weapon and not guilty of 

burglary. Johnson was sentenced to 25 years of confinement and 10 

years of extended supervision.

¶14 Johnson appealed, and the court of appeals reversed and 

remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52, 

393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded 

"the circuit court erred in denying Johnson's request to instruct 

the jury on perfect self-defense and second-degree reckless 

homicide and failed to allow into evidence that child pornography 

was found on K.M.'s computer."7 Id. We granted the State's 

petition for review.

II. DISCUSSION

¶15 This case presents three issues. Two concern 

instructions not provided to the jury, and the third considers the 

 

6 The circuit court reasoned that Johnson "brought the loaded 

gun there, and that he was aware that his conduct created that 

unreasonable and substantial risk of death or bodily harm."

7 The court of appeals affirmed the circuit court's decision 

not to instruct on homicide by negligent handling of a dangerous 

weapon. Johnson, 393 Wis. 2d 688, ¶42. This issue is not before 

us. 
No. 2018AP2318-CR

8

other-acts evidence Johnson sought to introduce regarding the 

contents of K.M.'s computer on the night of his death. We begin 

with the jury instructions.

A. Jury Instructions

1. Standard of Review

¶16 "A circuit court has broad discretion in deciding 

whether to give a requested jury instruction." State v. Coleman, 

206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). The circuit court's 

charge is "to fully and fairly inform the jury of the rules of law 

applicable to the case and to assist the jury in making a 

reasonable analysis of the evidence." State v. Vick, 104 

Wis. 2d 678, 690, 312 N.W.2d 489 (1981) (quoting another source). 

But circuit court discretion is far more limited in some 

circumstances——including determining whether the evidence 

presented supports instructing the jury on either perfect selfdefense or a lesser-included offense; these are questions of law 

we review de novo.8 State v. Peters, 2002 WI App 243, ¶12, 258 

Wis. 2d 148, 653 N.W.2d 300; State v. Fitzgerald, 2000 WI App 55, 

¶7, 233 Wis. 2d 584, 608 N.W.2d 391. 

¶17 "A jury must be instructed on self-defense when a 

reasonable jury could find that a prudent person in the position 

of the defendant under the circumstances existing at the time of 

the incident could believe that he was exercising the privilege of 

 

8 To the extent any statutes are interpreted and applied to 

this end, that review is also de novo. Quick Charge Kiosk LLC v. 

Kaul, 2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.
No. 2018AP2318-CR

9

self-defense." State v. Stietz, 2017 WI 58, ¶15, 375 Wis. 2d 572, 

895 N.W.2d 796. We recently described this benchmark as a low bar 

which only requires the accused to produce some evidence to support

the proposed instruction. Id., ¶16. This standard is met even if 

the evidence is "weak, insufficient, inconsistent, or of doubtful 

credibility." Id., ¶17 (quoting another source). Furthermore, 

circuit courts must not weigh the evidence; rather, the evidence 

must be viewed in the light most favorable to the defendant. 

Id., ¶¶13, 18. The instruction should be given based on this low 

modicum of evidence "unless the evidence is rebutted by the 

prosecution to the extent that 'no rational jury could entertain 

a reasonable doubt.'" State v. Schuman, 226 Wis. 2d 398, 404, 595 

N.W.2d 86 (Ct. App. 1999) (quoting another source).

¶18 Similarly, a lesser-included offense instruction should 

be provided if "a jury giving the evidence full credence could 

reasonably return a verdict of guilt on the lesser included 

offense." Ross v. State, 61 Wis. 2d 160, 173, 211 N.W.2d 827 

(1973). In making this determination, "all relevant and 

appreciable evidence is viewed in a light most favorable to the 

defendant." State v. Davis, 144 Wis. 2d 852, 855, 425 N.W.2d 411 

(1988). Failure "to instruct on an issue which is raised by the 

evidence" is error. State v. Weeks, 165 Wis. 2d 200, 208, 477 

N.W.2d 642 (Ct. App. 1991) (quoting another source).

2. Perfect Self-Defense

¶19 The statutes define two types of self-defense: perfect 

and imperfect. Imperfect self-defense is an affirmative defense 
No. 2018AP2318-CR

10

to first-degree intentional homicide. Wis. Stat. § 940.01(2)(b)

(2019-20).9 It is aptly named because, when successful, it reduces

a charge of first-degree intentional homicide to second-degree 

intentional homicide and therefore does not function as a complete 

(perfect) defense to a homicide charge. Id. The circuit court 

gave an imperfect self-defense instruction here.

¶20 Johnson contends the circuit court should have given a

perfect self-defense instruction as well. Wisconsin Stat. 

§ 939.48(1) provides the requirements:

A person is privileged to threaten or intentionally use 

force against another for the purpose of preventing or 

terminating what the person reasonably believes to be an 

unlawful interference with his or her person by such 

other person. The actor may intentionally use only such 

force or threat thereof as the actor reasonably believes 

is necessary to prevent or terminate the interference. 

The actor may not intentionally use force which is 

intended or likely to cause death or great bodily harm 

unless the actor reasonably believes that such force is 

necessary to prevent imminent death or great bodily harm 

to himself or herself.

Thus, to receive this instruction, Johnson had to make an objective 

threshold showing that (1) he reasonably believed he was preventing 

 

9 Under Wis. Stat. § 940.01(2)(b), imperfect self-defense is 

available when, "Death was caused because the actor believed he or 

she or another was in imminent danger of death or great bodily 

harm and that the force used was necessary to defend the endangered 

person, if either belief was unreasonable." § 940.01(2)(b). If 

these conditions are met, the defendant could be convicted of 

second-degree, rather than first-degree, intentional homicide. 

§ 940.01(2); see also Wis. Stat. § 940.05(3) (noting imperfect 

self-defense is not an affirmative defense to second-degree 

intentional homicide).

All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.
No. 2018AP2318-CR

11

or terminating an unlawful interference with his person, and (2) 

he intentionally used only the force he reasonably believed was 

necessary to terminate that interference. State v. Head, 2002 

WI 99, ¶4, 255 Wis. 2d 194, 648 N.W.2d 413. Additionally, because

he intentionally used force intended or likely to cause great 

bodily harm or death, Johnson needed to also show he reasonably 

believed the force he used was necessary to prevent great bodily 

harm or imminent death to himself. "Unlawful" in § 939.48 is 

defined as conduct that is "either tortious or expressly prohibited 

by criminal law or both." § 939.48(6).

¶21 The question here is whether "a reasonable jury could 

find that a prudent person in the position of [Johnson] under the 

circumstances existing at the time of the incident could believe" 

these conditions were met. Stietz, 375 Wis. 2d 572, ¶15. If some 

evidence from which a jury could so find was presented, the 

instruction should have been given.10

¶22 First, Johnson must show some evidence that he 

reasonably believed he was preventing or terminating an unlawful 

interference with his person. Stated another way, we must 

determine if some evidence was presented from which a jury could 

find that Johnson reasonably believed he was preventing K.M. from 

 

10 The dissent states we apply an incorrect standard of law 

by examining the reasonableness of Johnson's beliefs. Dissent, 

¶59 & n.6. However, that is exactly what the statute says to do, 

and exactly what our cases confirm——including those cited by the 

dissent. See State v. Stietz, 2017 WI 58, ¶68, 375 Wis. 2d 572, 

895 N.W.2d 796 (discussing the defendant's reasonable belief); 

Head, 255 Wis. 2d 194, ¶¶66-67 (same).
No. 2018AP2318-CR

12

harming him without lawful authority to do so. We agree with the 

court of appeals that the evidence could support such a conclusion.

¶23 Johnson testified that he was not looking for a 

confrontation with K.M. But when K.M. showed up and closed the 

door to the computer room, Johnson was left alone in the room with 

no means of escape, believing K.M. knew precisely why he was there. 

K.M. then flung the door open and attacked, lunging at Johnson. 

Even granting the unusual circumstance of seeing an unwelcome

family member in one's home in the middle of the night, a 

reasonable jury could conclude that K.M. engaged in an unprovoked 

physical attack on his brother-in-law to harm and possibly kill 

him. The jury knew that K.M. had previously been physically 

violent with Johnson, and that past history could lend credibility 

to Johnson's version of events, especially a need to defend himself 

with lethal force. A reasonable jury could conclude that Johnson 

reasonably believed K.M.'s attack on him was an unlawful

interference with his person.11

 

11 Our self-defense laws also establish a statutory 

presumption that a homeowner may use lethal force against unlawful 

or forcible entry into the home, commonly called the castle 

doctrine. Wis. Stat. § 939.48(1m)(ar). The dissent concludes the 

castle doctrine should apply to KM's actions, meaning KM lawfully 

attacked Johnson. Dissent, ¶69. However, we need not determine 

the scope and meaning of the castle doctrine to rule on the issues 

before us because we are examining Johnson's, not KM's, actions. 

Rather, we conclude there is some evidence from which a jury could 

find that Johnson reasonably believed he was being unlawfully 

interfered with. The substance and applicability of the castle 

doctrine does not change or alter that conclusion, and therefore 

exploring it is unnecessary to decide this case. Nothing in this 

opinion interprets, applies, or limits the castle doctrine in any 

way.
No. 2018AP2318-CR

13

¶24 Next, Johnson must also present some evidence from which 

a reasonable jury could conclude he intentionally used only the 

force he reasonably believed was necessary to terminate the 

interference with his person. Because Johnson used force intended 

or likely to cause death or great bodily harm——he shot K.M. five 

times——he must present some evidence that he reasonably believed 

this force was necessary to prevent great bodily harm or imminent 

death to himself. "[T]he personal characteristics and histories 

of the parties" are relevant to this determination. State v. 

Jones, 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989).

¶25 As we've discussed, Johnson testified that K.M.

physically, verbally, and sexually abused him, and physically 

abused his younger sister, starting when they were both young. 

And Johnson testified that on the night in question, K.M. opened 

the door, recognized him, and knew why he was there. He then

closed the door, and then reopened the door to lunge at Johnson 

and attack him. From this, the jury could conclude K.M. initiated 

a violent altercation with Johnson, possibly because he knew 

Johnson was looking for evidence of child pornography. These facts 

could be read to provide a motive and historical pattern to 

substantiate a conclusion that Johnson reasonably believed his 

life was in danger from K.M.'s attack. Even though Johnson did 

not recall the details of the physical altercation that led to 

K.M.'s death, a jury could infer that Johnson intentionally used 

only the force he reasonably believed would prevent an unlawful 

interference with his person and that deadly force was necessary 
No. 2018AP2318-CR

14

to prevent great bodily harm or imminent death.12 Even though 

Johnson was not able to describe what happened in detail and why 

he made the decisions he did when the attack began, a reasonable 

jury could still infer that Johnson responded with the level of 

force necessary to stop the attack.

¶26 In sum, we conclude the circuit court erred by declining 

to instruct on perfect self-defense. Viewing the evidence in the 

light most favorable to Johnson, there is some evidence from which 

a reasonable jury could conclude he had an objectively reasonable 

belief that he was preventing an unlawful interference with his 

person and that he used only force which was necessary to prevent 

imminent death or great bodily harm. Because Johnson was entitled 

to receive the perfect self-defense instruction, we affirm the 

court of appeals' decision on this issue.13

3. Second-Degree Reckless Homicide

¶27 With respect to the homicide charge against Johnson, the 

circuit court instructed the jury on first-degree intentional 

homicide, second-degree intentional homicide, and first-degree 

reckless homicide. The court of appeals concluded that the circuit 

 

12 We reiterate that a jury could also reach the opposite 

result. Our focus is merely on whether a jury could conclude 

Johnson acted in perfect self-defense, not that it would or should 

reach that conclusion.

13 The privilege of self-defense may also be limited when the 

person claiming self-defense provoked the initial attack. See

Wis. Stat. § 939.48(2)(a). The circuit court instructed the jury 

on provocation, a decision not challenged before us.
No. 2018AP2318-CR

15

court should also have instructed the jury on second-degree 

reckless homicide, and the State challenges that conclusion before 

us. If a party requests submission of a lesser included offense, 

as Johnson did here, the court should instruct the jury if "there 

are reasonable grounds in the evidence both for acquittal on the 

greater charge and conviction on the lesser offense." Fitzgerald, 

233 Wis. 2d 584, ¶7 (quoting another source).

¶28 A person who "recklessly causes the death of another 

human being under circumstances which show utter disregard for 

human life" is guilty of first-degree reckless homicide. Wis. 

Stat. § 940.02(1). Second-degree reckless homicide, meanwhile,

occurs when someone "recklessly causes the death of another human 

being." Wis. Stat. § 940.06(1). The only difference is that 

"utter disregard for human life" is a required element for firstdegree, but not second-degree, reckless homicide. The parties 

agree that second-degree reckless homicide is a lesser-included 

offense of first-degree reckless homicide. This means that someone 

who commits first-degree reckless homicide commits the seconddegree offense as well. See State v. Weso, 60 Wis. 2d 404, 408, 

210 N.W.2d 442 (1973) (noting that an offense is lesser-included 

when the defendant "could be convicted of the lesser crime even 

though he had been charged with and pleaded not guilty to the 

greater crime").

¶29 "[U]tter disregard for human life is measured 

objectively, on the basis of what a reasonable person in the 

defendant's position would have known." State v. Jensen, 2000 

WI 84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170. "A person acting 
No. 2018AP2318-CR

16

with utter disregard must possess 'a state of mind which has no 

regard for the moral or social duties of a human being.'" State 

v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188 

(quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331 

(1977)). Utter disregard for human life is interpreted 

"consistent[ly] with previous interpretations of the 'depraved 

mind' element that it replaced." Jensen, 236 Wis. 2d 521, ¶18. 

This court has explained:

To constitute a depraved mind, more than a high degree 

of negligence or recklessness must exist. The mind must 

not only disregard the safety of another but be devoid 

of regard for the life of another. . . . A depraved 

mind lacks a moral sense, an appreciation of life, is 

unreasonable and lacks judgment. A depraved mind has a 

general intent to do the acts and the consciousness of 

the nature of the acts and possible result but lacks the 

specific intent to do the harm.

Weso, 60 Wis. 2d at 411-12. In analyzing whether the defendant 

acted with utter disregard for human life, the factfinder examines 

the "totality of the circumstances" including the time before, 

during, and after the crime.14 State v. Burris, 2011 WI 32, ¶¶38-

39, 41, 333 Wis. 2d 87, 797 N.W.2d 430.

 

14 When examining the totality of the circumstances, factors 

that may be considered include:

the type of act, its nature, why the perpetrator acted 

as he/she did, the extent of the victim's injuries and 

the degree of force that was required to cause those 

injuries. We also consider the type of victim, the 

victim's age, vulnerability, fragility, and relationship 

to the perpetrator. And finally, we consider whether 

the totality of the circumstances showed any regard for 

the victim's life.
No. 2018AP2318-CR

17

¶30 Here, evidence was presented that could lead a 

reasonable jury to conclude that Johnson's actions did not 

constitute utter disregard for human life. In his telling, Johnson 

brought a gun with him for his protection——not to attack K.M. And 

Johnson combed through K.M.'s computer for two hours without 

alerting the occupants of the home to his presence. A jury could 

conclude that Johnson brought the gun intending to use it only if 

necessary for self-defense, and that his intent was to obtain the 

evidence he was looking for and leave without K.M. ever knowing he 

was there. And again, a jury could conclude it was K.M. that 

instigated a life or death situation by commencing a surprise

attack.15

¶31 Reading the evidence in the light most favorable to 

Johnson, there is evidence that he acted in fear for his own life, 

not necessarily with utter disregard for K.M.'s life.16 Based on 

 

State v. Jensen, 2000 WI 84, ¶24, 236 Wis. 2d 521, 613 N.W.2d 170 

(quoting another source).

15 Certainly there is evidence that could cause a jury to 

conclude otherwise——Johnson does not recall how he left the 

computer room or bypassed KM, or the details of how he shot KM

five times.

16 The court of appeals reached the same conclusion, but 

reasoned that Johnson's conduct searching for child pornography 

for the safety of his nieces demonstrates "a regard for the life, 

safety, and well-being of others." Johnson, 393 Wis. 2d 688, ¶40. 

In our view, however, the proper inquiry is whether a defendant 

showed regard for human life with respect to those present during 

the events in question. See, e.g., Balistreri v. State, 83 

Wis. 2d 440, 457-58, 265 N.W.2d 290 (1978) (determining the 

defendant did not have a "depraved mind" where he attempted to 

avoid a collision by swerving his car, honking his horn, and 

braking); State v. Miller, 2009 WI App 111, ¶42, 320 Wis. 2d 724, 
No. 2018AP2318-CR

18

this evidence, we conclude that the circuit court should have 

instructed the jury on second-degree reckless homicide as well. 

We affirm the decision of the court of appeals on this issue.17

B. Other-Acts Evidence

¶32 Finally, the court of appeals held that the circuit court 

impermissibly excluded other-acts evidence of what Johnson found 

on K.M.'s computer on the night of K.M.'s death. Under the rules 

of evidence, "evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show 

that the person acted in conformity therewith." Wis. Stat. 

 

772 N.W.2d 188 (determining there was no utter disregard for human 

life when the defendant did not engage physically after being 

struck, offered help, fired a shot only after the threats became 

imminent, and called 911 to report the shooting and asked if the 

victim would be okay).

17 The State does not argue that the circuit court's failure 

to instruct on perfect self-defense and second-degree reckless 

homicide was harmless. We agree that it was not. The jury 

convicted Johnson of first-degree reckless homicide but acquitted 

him on charges of first-degree intentional homicide, second-degree 

intentional homicide, and burglary. This suggests the jury 

believed at least some of Johnson's testimony. Had the perfect 

self-defense and second-degree reckless homicide instructions been 

given, the jury might have concluded either of these standards 

applied and reached a different outcome. Therefore, the circuit 

court's decision not to provide these instructions was not 

harmless, and Johnson is entitled to a new trial on remand. See

Wis. Stat. § 805.18(2) (directing the court to determine if the 

error "affected the substantial rights of the party"); Stietz, 375 

Wis. 2d 572, ¶63 ("A defendant's substantial rights remain 

unaffected (that is, the error is harmless) if it is clear beyond 

a reasonable doubt that a rational jury would have come to the 

same conclusion absent the error or if it is clear beyond a 

reasonable doubt that the error complained of did not contribute 

to the verdict obtained.").
No. 2018AP2318-CR

19

§ 904.04(2)(a). We use a three-step analytical framework to 

ascertain the admissibility of other-acts evidence:

(1) Is the other acts evidence offered for an acceptable 

purpose under Wis. Stat. § (Rule) 904.04(2), such as 

establishing motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or

accident?

(2) Is the other acts evidence relevant, considering the 

two facets of relevance set forth in Wis. Stat. § (Rule) 

904.01? The first consideration in assessing relevance 

is whether the other acts evidence relates to a fact or 

proposition that is of consequence to the determination 

of the action. The second consideration in assessing 

relevance is whether the evidence has probative value, 

that is, whether the other acts evidence has a tendency 

to make the consequential fact or proposition more 

probable or less probable than it would be without the 

evidence.

(3) Is the probative value of the other acts evidence 

substantially outweighed by the danger of unfair 

prejudice, confusion of the issues or misleading the 

jury, or by considerations of undue delay, waste of time 

or needless presentation of cumulative evidence? See

Wis. Stat. § (Rule) 904.03.

State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)

(footnote omitted).

¶33 Johnson contends this evidentiary decision should be

reviewed de novo because it implicates his constitutional right to 

present a defense. We disagree. Outside of certain constitutional 

commands,18 a circuit court's day-to-day decisions applying the 

rules of evidence will only rarely contain a constitutional 

dimension. "The rights to confront witnesses and to defend 

 

18 The prohibition against unreasonable searches and seizures, 

for example, raises different questions than ordinary decisions 

under the rules of evidence to admit or exclude evidence.
No. 2018AP2318-CR

20

are . . . not absolute and may bow to accommodate other legitimate 

interests in the criminal trial process," including the rules of 

evidence. State v. DeSantis, 155 Wis. 2d 774, 793, 456 N.W.2d 600 

(1990). As the United States Supreme Court has explained:

State and federal rulemakers have broad latitude under 

the Constitution to establish rules excluding evidence 

from criminal trials. Such rules do not abridge an 

accused's right to present a defense so long as they are 

not "arbitrary" or "disproportionate to the purposes 

they are designed to serve."

United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting

another source); see also State v. St. George, 2002 WI 50, ¶¶50-

51, 252 Wis. 2d 499, 643 N.W.2d 777 (explaining the "accused's 

right to present evidence is subject to reasonable restrictions"

under the rules of evidence). Evidentiary questions of the type

raised here——whether evidence is relevant or prejudicial under an 

other-acts inquiry——are therefore almost always properly reviewed 

for an erroneous exercise of discretion. DeSantis, 155 Wis. 2d at 

793-94. We see no reason to depart from this longstanding 

appellate rule in this case.

¶34 Under this manner of review, we examine whether "the 

circuit court applied the proper legal standard to the relevant 

facts and reached a reasonable discretionary decision." State v. 

Gutierrez, 2020 WI 52, ¶27, 391 Wis. 2d 799, 943 N.W.2d 870. If 

it did so, its decision is upheld. Id. And while the court of 

appeals clearly believed the evidence cut the other way, an 

appellate court "may not substitute its discretion for that of the 

circuit court." Id. (quoting another source). Rather, we "look 
No. 2018AP2318-CR

21

for reasons to sustain a trial court's discretionary decision." 

Id. (quoting another source).

¶35 The circuit court excluded this evidence on the grounds 

that it was not relevant and that its probative value would be 

substantially outweighed by its prejudicial effect under Wis. 

Stat. § 904.03.19 Putting aside the circuit court's conclusion 

that what was found that night was not relevant, it was certainly 

within the circuit court's discretion to conclude the danger of 

unfair prejudice substantially outweighed any possible relevance. 

The circuit court expressed its concern that introduction of this 

evidence could mislead the jury or cause them to focus on K.M.'s 

potential criminal behavior related to child pornography rather 

than the circumstances surrounding his death. Moreover, the court 

was worried about a trial within a trial regarding whether certain 

pictures constituted child pornography or not, possibly 

distracting the jury from the real issues in the case. And while 

Johnson was not permitted to present direct evidence of what he

found on K.M.'s computer, Johnson did testify that he went to the 

house to look for child pornography and that he believed he found 

what the police needed.

¶36 This evidentiary decision was a quintessential judgment 

call of the type we rely on circuit courts to make every day. And 

whether we would have made the same decision or not, it was a 

 

19 Wis. Stat. § 904.03 provides: "Although relevant, evidence 

may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence."
No. 2018AP2318-CR

22

reasonable call within the bounds of the law. The court of 

appeals' decision on this issue is reversed.

III. CONCLUSION

¶37 We conclude the circuit court erred by failing to 

instruct the jury on perfect self-defense and second-degree 

reckless homicide. We affirm the court of appeals on these issues, 

and agree that Johnson is entitled to a new trial on remand.20 

However, the circuit court properly exercised its discretion in 

denying the admission of the other-acts evidence; we reverse the 

court of appeals' decision on this issue.

By the Court.—The decision of the court of appeals is affirmed 

in part and reversed in part, and the cause is remanded to the 

circuit court for further proceedings consistent with this 

opinion.

 

20 The jury found Johnson guilty of first-degree reckless 

homicide, acquitted Johnson of burglary, and did not return a 

verdict on first- and second-degree homicide, greater offenses of 

first-degree reckless homicide, which served as an "implicit 

acquittal" on those charges. See Green v. United States, 355 

U.S. 184, 190 (1957). Accordingly, on remand the State is 

precluded from trying Johnson for burglary and first- and seconddegree homicide under the Double Jeopardy Clause of the Fifth 

Amendment to the United States Constitution. Id. at 190-91; Price 

v. Georgia, 398 U.S. 323, 329 (1970) ("[T]his Court has 

consistently refused to rule that jeopardy for an offense continues 

after an acquittal, whether that acquittal is express or implied 

by a conviction on a lesser included offense when the jury was 

given a full opportunity to return a verdict on the greater 

charge." (footnote omitted)).
No. 2018AP2318-CR.akz

1

¶38 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). It is 

amongst many people's worst fears to be asleep with your family in 

your own home and realize that someone may have broken in and is 

in your house. Some might go armed to assess the situation. In 

this case, the homeowner did not go armed, he was not even dressed. 

He went without any clothing or weapons to find an armed and 

dangerous man in his house. When the homeowner confronted the 

criminal invader, the criminal invader shot the unarmed, naked 

homeowner dead with his family asleep upstairs. Now the home 

invader claims he was justified in shooting the homeowner, killing 

him because the home invader was afraid. 

¶39 Today, the court endows the person wrongfully in the 

home with a jury instruction for perfect self-defense to homicide. 

I fear that the teaching from the majority's opinion is that 

criminal home invaders should go armed, shoot first, and later 

claim to be afraid so to avoid conviction. Every home invader 

should be afraid——afraid of detection, afraid of confrontation, 

afraid of being shot by the homeowner, afraid of the police, afraid 

of being convicted for the crime committed. But being afraid does 

not mean that the home invader can shoot first in "self-defense." 

The majority opinion creates a limitless loophole for those who 

invade another's home so long as they claim to be afraid. The 

majority opinion unleashes this perfect defense on the innocent 

public at great cost. This cannot be the law. 

¶40 The majority justifies its reasoning, claiming to cabin 

this perfect defense to this unique group of facts. However, this 

is unsupported in the law. In fact, the law prohibits anyone from 
No. 2018AP2318-CR.akz

2

trespassing into another's home. It was the defendant who claimed 

to be afraid of the homeowner but chose to put himself in closer 

proximity to the homeowner by breaking into his home. It was the 

defendant who put himself at risk by wrongfully entering another 

person's home in the middle of the night. Here, the defendant was 

not randomly confronted with the need to exercise self-defense——

he broke into another's home! Most typically, self-defense is the 

answer to an unexpected confrontation such that the person is 

permitted to use the amount of force necessary to escape and 

retreat. To allow the criminal home invader under these facts the 

opportunity to claim perfect self-defense is previously unknown in 

Wisconsin law. 

¶41 And what of the Castle Doctrine?1 The majority dispenses 

with a homeowner's presumptive right to attack a home invader, 

stating that it is irrelevant to the analysis. But the law rebuts 

this claim. To receive the perfect self-defense jury instruction, 

Johnson had to believe that K.M.'s lunge was unlawful. However, 

the Castle Doctrine makes clear that K.M. was legally permitted to 

lunge at——and even possibly kill——Johnson. But the majority balks 

at the Castle Doctrine, claiming that the Castle Doctrine does not 

impact this case because Johnson presented "some evidence" of 

unlawful interference. If the Castle Doctrine does not apply when 

a homeowner lunges at a home invader who is carrying a gun, then 

when does it apply? Such ignorance of the purpose underlying the 

Castle Doctrine is astonishing. 

 

1 The Castle Doctrine, as codified in Wis. Stat. § 939.48(1m), 

provides a presumptive right for a homeowner to use deadly force 

against a home invader.
No. 2018AP2318-CR.akz

3

¶42 The majority's conclusions cannot be the law. It 

unwittingly instructs criminals to go armed and shoot to kill 

during a home invasion, so the invader can claim perfect selfdefense and escape criminal liability. The majority green lights 

vigilantes to break into suspected criminals' homes and take the 

law into their own hands. The majority undermines a homeowner's 

presumptive right to defend the home against invaders. Because 

the law does not permit these unimaginable outcomes, I would hold 

that Johnson is not entitled to jury instructions on either perfect 

self-defense or second-degree reckless homicide. Accordingly, I 

respectfully dissent.2 

I. FACTUAL BACKGROUND

¶43 I begin by setting forth relevant facts as established 

by Johnson's testimony.3 As will be shown, this case hinges in 

large part on the testimony presented to the jury. 

¶44 Johnson testified that many years before the home 

invasion and shooting here, Johnson had found child pornography on 

K.M.'s computer. Johnson stated that he filed a report with the 

authorities stating that K.M.'s computer contained child 

pornography. The sheriff's office informed Johnson that there was 

"nothing [they] could do" about his report and tip because the 

evidence was "stale." Disappointed that the police did not take 

 

2 However, despite its errors and faults, the majority 

correctly determined that the circuit court did not err when it 

excluded certain other-acts evidence. 

3 Johnson's testimony is the only evidence in the record about 

what occurred on the night Johnson shot and killed K.M. 
No. 2018AP2318-CR.akz

4

action, Johnson informed his father about the child pornography 

and the report. Johnson's father confronted K.M. about the child 

pornography, and K.M. stated that he had "moved" the child 

pornography.4 

¶45 Upset that no one had taken any action against K.M., 

Johnson decided to take the law into his own hands. On the night 

of October 24, 2016, around 11:45 p.m., Johnson decided he would 

break into K.M.'s house and obtain "fresh" pictures of child 

pornography from K.M.'s computer. He decided to break in so late 

at night "because [he] figured everyone would be asleep." Johnson 

left to go to K.M.'s house, arming himself with his father's 

handgun and gloves. Johnson testified that he brought the gloves 

because he "didn't want to fry any of the equipment" because of 

static electricity. He also testified that he brought the gun 

because "[he] wouldn't be able to go in [K.M.'s house]" without it 

as he needed to feel safe in case K.M. found him after breaking 

in. 

¶46 Johnson arrived at K.M.'s house and parked around the 

corner. He then proceeded to break into K.M.'s house using the 

back door. After invading K.M.'s house, Johnson went to K.M.'s 

computer, with his gun and gloves, to search for what he believed 

would be child pornography. 

 

4 According to the defendant, Johnson and K.M. had a poor 

relationship. K.M. was married to Johnson's older sister. Johnson 

testified that for many years K.M. was physically abusive to him, 

his younger sister, and his nephew——K.M.'s son. Johnson also 

testified that on one occasion K.M. put his hands down Johnson's 

pants. He claimed to be afraid of K.M.
No. 2018AP2318-CR.akz

5

¶47 After searching for over two hours, at around 2:00 a.m. 

on October 25, 2016, Johnson heard a "scuff" outside of the 

computer room. Johnson exited out of the programs on the computer, 

closed it, grabbed the gun, stood up, and walked towards the door. 

As Johnson was walking towards the door, a naked K.M. opened the 

door, peered into the darkened room, and saw Johnson. K.M. 

immediately shut the door while Johnson stood still, gun in hand. 

Johnson testified that he felt like he had no means to escape the 

room other than through the door that K.M. just shut. During this 

standstill, Johnson's sister and nephew were asleep upstairs. 

¶48 After a few moments, the door flew open, and K.M. lunged 

at Johnson. Johnson testified that he did not recall what happened 

after the lunge, but it is clear what happened based on the 

evidence. Johnson shot the semi-automatic handgun five times, 

thus pulling the trigger five individual times, hitting K.M. with 

each shot. Johnson testified that he did not feel K.M. touch him 

at any time during this interaction. K.M. died from these gunshot 

wounds.

¶49 Although he does not remember how he left the room, it 

is clear that Johnson had to step over K.M.'s body to exit the 

room. When he exited the room, Johnson was covered in blood. At 

no time did Johnson call out to his sister or nephew, nor did he 

render aid to the shot K.M. Instead, Johnson next recalled being 

several blocks away in the truck he came in, soaked in blood. 

¶50 Later the same day, still October 25, 2016, the police 

began investigating K.M.'s death. The police questioned Johnson 

twice regarding K.M.'s death. Both times, Johnson lied to the 
No. 2018AP2318-CR.akz

6

police, stating that he did not know how K.M. died. However, later 

in the day, Johnson confessed: "Arrest me, I killed him."

II. STANDARD OF REVIEW

¶51 This case asks the court to determine whether Johnson is 

entitled to jury instructions for both perfect self-defense and 

second-degree reckless homicide. "A circuit court has broad 

discretion in issuing jury instructions based on the facts and 

circumstances of the case and in deciding whether to give a 

specific jury instruction requested by the parties." State v. 

Neumann, 2013 WI 58, ¶89, 348 Wis. 2d 455, 832 N.W.2d 560. 

"Whether there are sufficient facts to warrant the circuit court's 

instructing the jury on self-defense is a question of law that the 

court decides independently of the circuit court and court of 

appeals, but benefiting from their analyses." State v. Stietz, 

2017 WI 58, ¶14, 375 Wis. 2d 572, 895 N.W.2d 572. Similarly, the 

court decides independently "whether the evidence adduced at trial 

permits the giving of a lesser-included offense instruction," as 

this is a question of law. State v. Kramar, 149 Wis. 2d 767, 792, 

440 N.W.2d 317 (1989). 

¶52 This case also requires the interpretation and 

application of statutes, which this court does independent of the 

circuit court and court of appeals. State v. Trammell, 2019 WI 

59, ¶16, 387 Wis. 2d 156, 928 N.W.2d 564.

III. ANALYSIS

¶53 This analysis centers on the majority's erroneous 

conclusion that the circuit court should have provided a perfect 
No. 2018AP2318-CR.akz

7

self-defense jury instruction and a second-degree reckless 

homicide jury instruction. I begin with a discussion of the 

perfect self-defense jury instruction before turning to the 

second-degree reckless homicide jury instruction. 

A. Perfect Self-Defense

¶54 Johnson argues that he was entitled to receive the 

perfect self-defense jury instruction. The circuit court 

correctly concluded that Johnson was not entitled to receive the 

perfect self-defense jury instruction. 

¶55 In Wisconsin, there are two types of self-defense a 

defendant can claim: imperfect self-defense and perfect selfdefense. Imperfect self-defense is an affirmative defense to 

first-degree intentional homicide, which is available when 

"[d]eath was caused because the actor believed he or she or another 

was in imminent danger of death or great bodily harm and that the 

force used was necessary to defend the endangered person, if either 

belief was unreasonable." Wis. Stat. § 940.01(2)(b). If found by 

a jury, imperfect self-defense mitigates first-degree intentional 

homicide to second-degree intentional homicide. See Wis. Stat. 

§§ 940.01(2), 940.05(3). The circuit court instructed the jury on 

imperfect self-defense in this case. 

¶56 Unlike imperfect self-defense, which merely mitigates a 

conviction, perfect self-defense is an affirmative defense that 

completely bars conviction for certain crimes. See Wis. Stat. 

§§ 939.45, 939.48(1). Wisconsin codified perfect self-defense in 

§ 939.48(1), which provides:

A person is privileged to threaten or intentionally use 

force against another for the purpose of preventing or 
No. 2018AP2318-CR.akz

8

terminating what the person reasonably believes to be an 

unlawful interference with his or her person by such 

other person. The actor may intentionally use only such 

force or threat thereof as the actor reasonably believes 

is necessary to prevent or terminate the interference. 

The actor may not intentionally use force which is 

intended or likely to cause death or great bodily harm 

unless the actor reasonably believes that such force is 

necessary to prevent imminent death or great bodily harm 

to himself or herself.[5]

Distilling this statute down, perfect self-defense has two 

elements when the defendant uses deadly force: (1) a reasonable 

belief in the existence of an unlawful interference that is likely 

to cause imminent death or great bodily harm; and (2) a reasonable 

belief that the amount of force the person intentionally used was 

necessary to prevent imminent death or great bodily harm to the 

defendant. See State v. Head, 2002 WI 99, ¶84, 255 Wis. 2d 194, 

648 N.W.2d 413. However, when determining whether a particular 

defendant is entitled to a perfect self-defense jury instruction, 

the "reasonable belief" articulated is from the perspective of a 

prudent person. Stietz, 375 Wis. 2d 572, ¶15. Phrased another 

way, to receive the perfect self-defense jury instruction, a 

defendant had to produce "some evidence" that "a reasonable jury 

could find that a prudent person in the position of the defendant 

under the circumstances at the time of the incident could believe 

that he was exercising the privilege of self-defense." Id., ¶¶15, 

16. 

¶57 Accordingly, to receive the perfect self-defense jury 

instruction, Johnson must present some evidence that a reasonable 

 

5 "In this section 'unlawful' means either tortious or 

expressly prohibited by criminal law or both." Wis. Stat. 

§ 939.48(6).
No. 2018AP2318-CR.akz

9

jury could find that (1) a prudent person in Johnson's position 

would reasonably believe that K.M. was unlawfully interfering in 

such a way that would cause imminent death or great bodily harm to 

Johnson, and (2) a prudent person in Johnson's position would 

reasonably believe that shooting K.M. was necessary to prevent 

imminent death or great bodily harm to Johnson. 

¶58 This is no ordinary self-defense case. This is a case 

where the defendant used "force which is intended or likely to 

cause death or great bodily harm." Consequently, the interference 

must have been the type that is likely to cause "imminent death or 

great bodily harm" to Johnson. See Wis. Stat. § 939.48(1). 

¶59 Moreover, the majority erroneously focuses on whether 

Johnson, and not a prudent person in Johnson's position, possessed 

a reasonable belief. Majority op., ¶20.6 This restatement of the 

test impermissibly injects Johnson's subjective beliefs at the 

time of the incident into an inquiry that focuses on what a 

reasonable jury could find based on what a prudent person in 

Johnson's position would reasonably believe. See Steitz, 375 

 

6 Although the majority purports to be applying the objective 

test, it continually restates that it is looking at what Johnson 

believed and not what a prudent person in Johnson's position would 

have believed. See majority op., ¶22 ("we must determine if some 

evidence was presented from which a jury could find that Johnson

reasonably believed . . . ."); id., ¶23 ("A reasonable jury could 

conclude that Johnson reasonably believed . . . ."); id., ¶24 

("Johnson must also present some evidence from which a reasonable 

jury could conclude he intentionally used only the force he

reasonably believed . . . ."); id., ¶25 ("[A] jury could infer 

that Johnson intentionally used only the force he reasonably 

believed . . . .") (Emphases added.) 
No. 2018AP2318-CR.akz

10

Wis. 2d 572, ¶15. This flawed understanding of the objective test 

colors the majority's entire analysis. 

¶60 When we apply the correct, objective standard, it is 

clear that Johnson has presented no evidence from which a 

reasonable jury could find that a prudent person in Johnson's 

position could reasonably believe that K.M. was unlawfully 

interfering in such a way that would cause imminent death or great 

bodily harm to Johnson. Similarly, it is clear that Johnson 

presented no evidence from which a reasonable jury could find that 

a prudent person in Johnson's position could reasonably believe 

that shooting K.M. was necessary to prevent imminent death or great 

bodily harm to Johnson. 

1. No objective, reasonable belief in the existence

of unlawful interference

¶61 For two independently sufficient reasons, Johnson cannot 

show that he provided sufficient evidence of K.M.'s alleged 

unlawful interference that was likely to cause imminent death or 

great bodily harm to Johnson. First, K.M. was not acting 

unlawfully because his conduct was protected by the Castle 

Doctrine. Second, Johnson has provided no objective facts that 

demonstrate that a reasonable jury could find that a prudent person 

in Johnson's position would reasonably believe that K.M. was 

unlawfully acting in such a way that would cause imminent death or 

great bodily harm to Johnson. 

a. Castle Doctrine

¶62 K.M.'s alleged interference was not unlawful because it 

was protected by the Castle Doctrine. The Castle Doctrine extends 

the self-defense privilege in the context of the home to include 
No. 2018AP2318-CR.akz

11

the presumptive right to use deadly force. See Wis. Stat. 

§ 939.48(1m); see also State v. Christen, 2021 WI 39, ¶44, 396 

Wis. 2d 705, 958 N.W.2d 746. When a homeowner uses deadly force 

against a person that the homeowner reasonably believed unlawfully 

and forcibly entered the homeowner's dwelling, "the court may not 

consider whether the actor had an opportunity to flee or retreat 

before [the homeowner] used force and shall presume that the 

[homeowner] reasonably believed that the force was necessary to 

prevent imminent death or great bodily harm to himself or herself." 

Wis. Stat. § 939.48(1m)(ar). This means that when a homeowner 

finds someone in their home and the homeowner reasonably believes 

that person broke into the home, the homeowner has the presumptive 

right to use deadly force against the invader. 

¶63 The Castle Doctrine intersects with this case because 

Johnson was just such an invader in K.M.'s home. Johnson broke 

into K.M.'s home in the middle of the night, and K.M. found him as 

an invader——satisfying the first aspect of the Castle Doctrine. 

Consequently, the court must presume that any force K.M. was going 

to use was necessary, even if it was deadly force. 

¶64 As relevant to the perfect self-defense jury 

instruction, Johnson had to reasonably believe that K.M. was acting 

under the Castle Doctrine. "[E]very person is expected to know 

the law." Neumann, 348 Wis. 2d 455, ¶50 n.29; see also Byrne v. 

State, 12 Wis. 519 (1860) ("[D]efendants are presumed to know the 

law . . . ."). As such, we presume that Johnson knows the Castle 

Doctrine. Because Johnson is presumed to know of the Castle 

Doctrine, it is clear that an objective, prudent person in 
No. 2018AP2318-CR.akz

12

Johnson's position would know that the homeowner——here, K.M.——

could legally use deadly force on the person when found after a 

break-in. Accordingly, Johnson cannot show that K.M.'s lunge was 

an unlawful interference because K.M. was presumptively permitted 

to lunge at and attack Johnson as an invader in his home. 

¶65 Johnson attempts to circumvent this conclusion by 

arguing that K.M. was actively engaged in a criminal activity; 

namely, possession of child pornography. Johnson is correct that 

a homeowner cannot rely on the Castle Doctrine when the homeowner 

is "engaged in a criminal activity . . . at the time." Wis. Stat. 

§ 938.48(1m)(b)1. However, mere speculation of criminal activity 

cannot form the basis of overriding a homeowner's presumptive right 

to use deadly force against a home invader; the homeowner must 

actually be engaged in a criminal activity at the time. Id. There 

is no evidence in the record that, at the time Johnson broke into 

K.M.'s house, K.M. was engaged in any criminal activity. Johnson 

alleges that he found child pornography on the computer that he 

broke into the house to search; no such child pornography was 

admitted into the record. Accordingly, K.M. was entitled to the 

Castle Doctrine's presumption of the right to use deadly force. 

Johnson failed to present any evidence that would overcome this 

presumption. 

¶66 The majority ignores the Castle Doctrine's impact on 

this case, opening the door for vigilante justice and providing 

motivation to home invaders to shoot to kill so they can claim 

perfect self-defense. The law and its procedures not only protect 

the accused, but also the victim. See Wis. Const. art. I, § 9m. 
No. 2018AP2318-CR.akz

13

The majority ignores K.M.'s presumptive right to defend his home 

and his family against a home invader. Instead, the majority green 

lights a home invader's attempt to escape all liability and dilutes 

a homeowner's presumptive right to protect the home against those 

invaders. I would not allow such a green light, and I would apply 

the Castle Doctrine to K.M.'s actions, meaning that K.M.'s actions 

were lawful; and therefore, Johnson is not entitled to a perfect 

self-defense jury instruction.

b. No evidence

¶67 The Castle Doctrine notwithstanding, Johnson did not 

proffer any evidence from which a reasonable jury could find that 

a prudent person in Johnson's position would reasonably believe 

that K.M. was unlawfully acting in such a way that would cause 

imminent death or great bodily harm to Johnson. Because the 

analysis must be from the perspective of the objective, prudent 

person, I begin by setting forth the facts, not Johnson's feelings 

or characterizations, in the light most favorable to Johnson.7

¶68 Here, Johnson entered K.M.'s house in the middle of the 

night. Johnson arrived with gloves, a gun, and a plan: to 

investigate K.M. and discover what he thought was criminal 

 

7 Included in these facts are "the personal characteristics 

and histories of the parties" as those characteristics and 

histories are part of the record. State v. Jones, 147 Wis. 2d 806, 

816, 434 N.W.2d 380 (1989). In the context of claims of selfdefense, this type of evidence is commonly referred to as McMorris

evidence; that is, "evidence of violent acts the victim had 

committed which [the defendant] knew about at the time of the 

alleged crime, and which would bear on the reasonableness of the 

claim of self-defense." State v. McClaren, 2009 WI 69, ¶1, 318 

Wis. 2d 739, 767 N.W.2d 550 (citing McMorris v. State, 58 

Wis. 2d 144, 205 N.W.2d 559 (1973)).
No. 2018AP2318-CR.akz

14

activity. After several hours of investigating on K.M.'s computer, 

Johnson heard a noise, closed the computer, grabbed the gun, and 

headed to the door. A naked K.M. opened the door, peered into a 

darkened room, and saw Johnson. K.M. then immediately closed the 

door. Johnson stood there, gun in hand, and did not make a move. 

Johnson knew of K.M.'s history of choking people, pulling hair, 

squeezing heads, and punching people, and that K.M. was much larger 

than himself. K.M. then opened the door and lunged at Johnson. 

In response, Johnson shot K.M. five times, killing K.M.

¶69 These are the objective facts, presented in the light 

most favorable to Johnson, from his own testimony. Johnson had to 

supply evidence that K.M.'s interference was likely to cause 

imminent death or great bodily harm to Johnson. A mere lunge can 

hardly be characterized as likely to cause imminent death or great 

bodily harm. Simply put, Johnson presented no evidence that K.M.'s 

alleged unlawful interference was likely to cause imminent death 

or great bodily harm to Johnson. Accordingly, Johnson is not 

entitled to receive the perfect self-defense jury instruction.

2. No objective, reasonable belief that killing 

K.M. was necessary to prevent imminent death 

or great bodily harm.

¶70 For two independently sufficient reasons, Johnson cannot 

show that he provided sufficient evidence from which a reasonable 

jury could conclude that a prudent person in Johnson's position 

would reasonably believe that killing K.M. was necessary to prevent 

imminent death or great bodily harm to Johnson. First, Johnson 

was unlawfully in K.M.'s home, creating the danger by his own 

wrongful conduct. As such, his force was legally not necessary 
No. 2018AP2318-CR.akz

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because he unlawfully sought out the danger that caused him to 

exercise "self-defense." Second, Johnson has provided no evidence 

that shooting and killing K.M. was necessary to prevent imminent 

death or great bodily harm to Johnson. 

a. No perfect self-defense when creating the danger

¶71 Over a century ago, this court stated the rule of selfdefense generally requires a person to have the right to be in the

location where self-defense is exercised: 

[The common law rule of retreat] has been superseded by 

a doctrine in harmony with the divine right of selfdefense; the doctrine that when one is where he has a 

right to be and does not create the danger by his own 

wrongful conduct, he may stand his ground, if assailed 

by another . . . .

Miller v. State, 139 Wis. 57, 75, 119 N.W. 850 (1909) (emphasis 

added); see also State v. Watkins, 2002 WI 101, ¶¶91-94, 255 

Wis. 2d 265, 647 N.W.2d 244 (explaining that the rule from Miller

must be considered when determining whether the force used was 

necessary). Thus, a defendant generally cannot claim self-defense 

if he or she was illegally in the place where self-defense was 

used because this conflicts with the principle of retreat. Here, 

the defendant did the opposite of retreat. Johnson broke into 

K.M.'s home and placed himself in a situation where the reasonable 

person would suspect that the homeowner may attack a home invader. 

The logic of retreat and self-defense is to avoid possible 

confrontation and use force only when necessary to protect oneself. 

The majority does not address retreat, nor the fact that Johnson 

broke into K.M.'s house while armed with the specific intention of 

protecting himself against attack. Johnson's "self-defense" can 
No. 2018AP2318-CR.akz

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hardly be called necessary when he sought out the situation where 

he would have to use self-defense. 

¶72 Allowing a defendant who seeks out life-threatening 

danger by breaking into a home to claim self-defense also 

fundamentally undermines a homeowner's Second Amendment right to 

"possess and carry weapons in case of confrontation." Christen, 

396 Wis. 2d 705, ¶43 (quoting District of Columbia v. Heller, 554 

U.S. 570, 592 (2008)). Under the majority's logic, a domestic 

abuser could know that his or her victim keeps a firearm in a 

bedside drawer for defense, as is constitutionally permitted. The 

abuser could then bring a gun to "defend themselves" because the 

abuser knows of the victim's firearm. Then, the abuser could enter 

the victim's home——under the pretenses of investigating alleged 

criminal activity——shoot the domestic abuse victim, and claim that 

he or she feared for his or her life because the victim had a gun. 

Such backward logic transforms a homeowner's lawful right to 

possess a firearm for home defense into the catalyst for a home 

invader to shoot a homeowner and receive perfect self-defense. 

This example of a domestic abuse situation is not alone. Consider 

rival gang members who have bad blood, breaking and entering into 

another's home with a gun, shooting another, claiming to be afraid 

of another, and asserting perfect self-defense. And the examples 

could go on and on without limitation. This is not, and cannot, 

be the law. 

¶73 Because Johnson unlawfully sought out the danger, by 

breaking into K.M.'s home, that required him to exercise "selfdefense," Johnson cannot now claim that the amount of force he 
No. 2018AP2318-CR.akz

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used was necessary. Johnson should never have been in K.M.'s home. 

Accordingly, Johnson is not legally entitled to a perfect selfdefense jury instruction. 

b. No evidence

¶74 Johnson also presented no evidence that shooting and 

killing K.M. was necessary to prevent imminent death or great 

bodily harm to Johnson. As I just discussed, there was no threat 

of imminent death or great bodily harm. Even beyond that simple 

fact, Johnson proffered no testimony that shooting and killing 

K.M. was necessary. Johnson testified that he has no memory from 

the time K.M. lunged at him until several minutes later when he 

clearly recalls driving home with blood-soaked clothing. During 

the critical period of when Johnson pulled the trigger, he recalls 

nothing——not pulling the trigger, the sound of the gun, nor 

stepping over K.M.'s body to exit the room. 

¶75 Johnson provided a complete dearth of evidence as to the 

necessity. Because Johnson presented no evidence as to why or how 

he pulled the trigger, killing K.M., a reasonable jury must look 

at what was known up until the time of the lunge from the 

perspective of an objective, prudent person, not Johnson's 

statement of his own perspective. Johnson testified that he knew 

that his sister and his nephew were sleeping in a room adjacent to 

where the interaction occurred. He acknowledged that he could 

have called out to them for assistance or to alert them to any 

impendent threat to life and limb.

¶76 Johnson argues that K.M. knew he found evidence of 

criminal activity, and so K.M. was attempting to kill him to 
No. 2018AP2318-CR.akz

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prevent him from going to the police with the evidence. 

Consequently, his force was necessary to prevent K.M.'s imminent 

threat to life and limb. Despite Johnson's characterizations, 

there is simply no evidence in the record that K.M. was engaged in 

criminal activity, nor is there any evidence in the record from 

which a reasonable jury could conclude that a prudent person in 

Johnson's position would believe this. 

¶77 In sum, there is a complete lack of evidence that K.M.'s 

lunge was going to cause imminent death or great bodily harm and 

that Johnson shooting K.M. was necessary to prevent imminent death 

or great bodily harm. Consequently, Johnson was not entitled to 

a perfect self-defense jury instruction. 

B. Second-Degree Reckless Homicide

¶78 Johnson was not entitled to receive a jury instruction 

on second-degree reckless homicide as a lesser-included offense to 

first-degree reckless homicide. We have adopted a two-step process 

to determine "whether a lesser included instruction should be 

given." State v. Muentner, 138 Wis. 2d 374, 387, 406 N.W.2d 415 

(1987). The first step of this process is to "determine, as a 

matter of law, whether the offense was lesser included." Id. 

"Wisconsin has adopted the 'elements only' test," which means that 

a lesser included crime is "[a] crime which does not require proof 

of any fact in addition to those which must be proved for the crime 

charged." State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259 

(Ct. App. 1999) (alteration in original) (citation omitted). If 

the offense was lesser included, "[t]he second step is to determine 

whether there is a reasonable basis in the evidence for an 
No. 2018AP2318-CR.akz

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acquittal on the greater charge and for a conviction on the lesser 

charge." Muentner, 138 Wis. 2d at 386. "[T]he second step 

involves a weighing of evidence which would be presented to the 

jury. Thus, the court is assessing the likelihood that the jury 

would find all the elements of the particular crime." Id. 

¶79 Here, Johnson was charged, and convicted of, firstdegree reckless homicide. To be found guilty of first-degree 

reckless homicide, a person must "recklessly cause the death of 

another human being under circumstances which show utter disregard 

for human life." Wis. Stat. § 940.02(1).8 Johnson is seeking to 

receive a jury instruction on second-degree reckless homicide. To 

be found guilty of second-degree reckless homicide, a person must 

"recklessly cause the death of another human being."9 

¶80 Applying the first step to determine whether a lesserincluded offense jury instruction is required, we must compare the 

elements of first- and second-degree reckless homicide. Jones, 

228 Wis. 2d at 598. When we compare the elements, every element 

of second-degree reckless homicide must be proven for a person to 

be convicted of first-degree reckless homicide. Accordingly, 

second-degree reckless homicide is a lesser-included offense of 

first-degree reckless homicide. 

 

8 There are other circumstances under which an individual may 

be found guilty of first-degree reckless homicide. Wis. Stat. 

§ 940.02(1m), (2). However, these other circumstances are not at 

issue in this case. 

9 A person can also be found guilty of second-degree reckless 

homicide if the person "recklessly causes the death of an unborn 

child." Wis. Stat. § 940.06(2). 
No. 2018AP2318-CR.akz

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¶81 Having determined that second-degree reckless homicide 

is a lesser-included offense of first-degree reckless homicide, we 

turn to step two: "whether there is a reasonable basis in the 

evidence for an acquittal on the greater charge and for a 

conviction on the lesser charge." Muentner, 138 Wis. 2d at 387. 

Because "utter disregard for human life" is the only element that 

is different between first- and second-degree reckless homicide, 

we must weigh the facts of this case and determine whether Johnson 

acted with an utter disregard for human life. Id. Accordingly, 

if we weigh the evidence and determine that no reasonable jury 

could determine that Johnson did not act with an utter disregard 

for human life, Johnson would not be entitled to a jury instruction 

on second-degree reckless homicide. 

¶82 "[U]tter disregard for human life is measured 

objectively, on the basis of what a reasonable person in the 

defendant's position would have known." State v. Jensen, 2000 WI 

84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170.10 If utter disregard for 

human life is proven, "the offender is considered more culpable 

because the conduct, according to the standards observed by the 

great mass of mankind, went beyond simple criminal recklessness to 

encompass something that, although falling short of an intentional 

crime, still deserves to be treated more seriously under the law 

and punished more severely." Id. "In evaluating the proof of 

 

10 I agree with the majority that "the proper inquiry is 

whether a defendant showed regard for human life with respect to 

those present during the events in question" and not a general 

regard for the wellbeing and safety of those not present. Majority 

op., ¶31 n.16. 
No. 2018AP2318-CR.akz

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utter disregard for human life, the factfinder is to consider all 

the factors relating to the conduct including what the defendant 

was doing; why he was doing it; how dangerous the conduct was; how 

obvious the danger was and whether the conduct showed any regard 

for human life." Id., ¶24 (cleaned up).11 

¶83 Here, no reasonable jury could conclude that Johnson 

acted without utter disregard for human life. Johnson carried a 

gun and gloves to break into his brother-in-law's house in the 

middle of the night. After spending several hours in the house as 

an invader, Johnson heard a noise outside of the computer room. 

Instead of calling out to his brother-in-law, his sister, or his 

nephew, Johnson covered his tracks, closing the computer and 

walking towards the door, gun in hand. After K.M. lunged into the 

room, Johnson pulled the trigger of his gun five individual times 

with each of the shots hitting K.M., including in his back and 

head. Instead of alerting his sister or nephew that he just shot 

K.M., Johnson stepped over K.M.'s body and fled the scene. At no 

time did Johnson render aid to K.M. nor did he attempt to show any 

regard for his callous act of shooting another man. Based on these 

facts, no reasonable jury could conclude that Johnson acted without 

utter disregard for K.M.'s life.

¶84 The majority ignores several key facts in its analysis 

of the night in question. Namely, the majority ignores that 

 

11 The phrasing of these factors has changed over time. 

Compare State v. Edmunds, 229 Wis. 2d 67, 77, 598 N.W.2d 290 

(1999), with Wis JI——Criminal 1022 (2015). But the underlying 

factors have remained unchanged——we must observe the totality of 

the circumstances from the perspective of a reasonable person in 

the defendant's position. 
No. 2018AP2318-CR.akz

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Johnson shot K.M. five times, never called for assistance from his 

nearby sister or nephew——either before the murder or after——never 

rendered aid to K.M., then stepped over K.M.'s body, and fled the 

scene. Instead of observing the "totality of the circumstances," 

the majority focuses on the fact that Johnson said that he brought 

a gun with the intent of using it for self-defense. Majority op., 

¶30. The majority's cherry-picking of facts demonstrates that the 

majority is not considering the totality of circumstances. When 

we observe all of the facts and weigh them, it is clear that no 

reasonable jury could conclude that Johnson acted without utter 

disregard for K.M.'s life. Accordingly, Johnson is not entitled 

to a second-degree reckless homicide jury instruction. 

IV. CONCLUSION

¶85 The majority's conclusions cannot be the law. It 

unwittingly instructs criminals to go armed and shoot to kill 

during a home invasion, so the invader can claim perfect selfdefense and escape criminal liability. The majority green lights 

vigilantes to break into suspected criminals homes and take the 

law into their own hands. The majority undermines a homeowner's 

presumptive right to defend the home against invaders. Because 

the law does not permit these unimaginable outcomes, I would hold 

that Johnson is not entitled to jury instructions on either perfect 

self-defense or second-degree reckless homicide. 

¶86 For the foregoing reasons, I respectfully dissent.

¶87 I am authorized to state that Justice PATIENCE DRAKE 

ROGGENSACK joins this dissent. 
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¶88 I am also authorized to state the Justice JILL J. KAROFSKY 

joins ¶¶38-40, 42-60, and 67-85 of this dissent.
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