COURT OF APPEALS

DECISION

DATED AND FILED

May 18, 2022

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. 2021AP525-CR Cir. Ct. No. 2017CF47

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL W. CINA,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County: 

BRUCE E. SCHROEDER, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Kornblum, 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. 2021AP525-CR

2

¶1 PER CURIAM. Michael W. Cina appeals a judgment of conviction 

for first-degree intentional homicide by use of a dangerous weapon.1 Cina argues 

the circuit court erroneously denied his request for lesser-included instructions of

felony murder and first- and second-degree reckless homicide. We conclude the 

evidence did not reasonably support those instructions. Accordingly, we affirm. 

BACKGROUND

¶2 On the morning of August 21, 2016, Anita, Bernard Reavers’s 

upstairs neighbor, asked to borrow his vacuum.2 While at Anita’s apartment, 

Reavers heard a noise in the kitchen. Reavers went to investigate, and Anita heard

him say “Hey, man.” She heard a gunshot and found Reavers lying on the kitchen 

floor, bleeding from a head wound. She was able to briefly glimpse a person 

running down the steps outside her kitchen. Anita testified that only a few 

seconds elapsed between the time Reavers left for the kitchen and the gunshot.

¶3 Cina’s case proceeded to trial, at which it is undisputed the State 

presented overwhelming evidence that Cina was the shooter. Among other things, 

a glove left in the kitchen had DNA that matched Cina’s, to a one-in-five-trillion 

certainty. The tread on a pair of Puma tennis shoes at Cina’s residence matched 

bloody footprints left at the scene, and a bag full of commonly used burglary tools 

was found in Cina’s basement. Cina also confessed to two friends that he had shot 

Reavers while attempting a robbery.

 

1

 Cina was also convicted of burglary and possession of a firearm by a felon. He does 

not challenge his convictions on those counts, and we therefore do not further discuss them. 

2

 We use a pseudonym for victims other than the deceased, pursuant to the policy 

underlying WIS. STAT. RULE 809.86 (2019-20). All references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise noted.
No. 2021AP525-CR

3

¶4 Cina did not testify at trial and presented no defense witnesses. His 

closing argument was that the State had not demonstrated Cina was the burglar or 

the shooter. He requested that the circuit court instruct the jury on several lesserincluded offenses of first-degree intentional homicide: felony murder and firstand second-degree reckless homicide. The circuit court declined, reasoning that if 

the jury believed Cina was the shooter, the evidence gave rise to no other 

inference than that the shooting had been intentional. Conversely, if the jury 

concluded the State failed to establish Cina was the shooter, it would have to 

acquit him. The jury found Cina had committed the homicide, and the court 

sentenced him to lifetime imprisonment. He now appeals, asserting the failure to 

give the lesser-included instructions was error.

DISCUSSION

¶5 A circuit court has broad discretion to determine what instructions 

are given to a jury. State v. Wilson, 149 Wis. 2d 878, 898, 440 N.W.2d 534 

(1989). In general, we will affirm if the instructions fully and fairly informed the 

jury of the rules of law applicable to the case and assisted the jury in making a 

reasonable analysis of the evidence. State v. Johnson, 2021 WI 61, ¶16, 397 

Wis. 2d 633, 961 N.W.2d 18. A circuit court’s discretion is more limited when it 

comes to determining whether the evidence warrants an instruction on a lesserincluded offense. Id. We review that issue de novo. Id.

¶6 The first step in the analysis is to determine whether the crime for 

which an instruction was requested is, in fact, a lesser-included offense of the 

crime charged. State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259 (Ct. App. 

1999). Here, the State agrees with Cina that felony murder, see WIS. STAT.

§ 940.03, and first- and second-degree reckless homicide, see WIS. STAT.
No. 2021AP525-CR

4

§§ 940.02 and 940.06, are all lesser-included offenses of first-degree intentional 

homicide under WIS. STAT. § 939.66(2).

¶7 The parties differ on the second step of the analysis, which requires a 

determination of whether the requested instruction is grounded in evidence before 

the trier of fact. See Jones, 228 Wis. 2d at 598. “It is error for a court to refuse to 

instruct on an issue which is raised by the evidence or to give an instruction on an 

issue which finds no support in the evidence.” Wilson, 149 Wis. 2d at 898. A 

requested lesser-included instruction should be provided “if there are reasonable 

grounds in the evidence both for acquittal on the greater charge and conviction on 

the lesser offense.” Johnson, 397 Wis. 2d 633, ¶27. In making this 

determination, the evidence is viewed in the light most favorable to the defendant. 

Id., ¶18.

¶8 Cina argues the lesser-included instructions were appropriate 

because there was no evidence he had any dispute with or anger toward the victim 

and there were no witnesses at trial who saw the actual shooting. He posits that 

while one reasonable view of the evidence is that he shot with intent to kill,

3

“there 

are other possibilities as well.” For example, Cina suggests there may have been a 

struggle, Reavers may have tried to grab his gun, or Cina might have shot the gun 

accidentally.

¶9 In response, the State marshals the considerable evidence at trial 

demonstrating intent to kill, including his comments to others and the fact that 

 

3

 Cina appears to discount the notion that he could form the intent to kill nearly 

simultaneously with the act of shooting, yet it is black-letter law that there may be no appreciable 

space of time between the formation of the intent to kill and the act of killing. See Muller v. 

State, 94 Wis. 2d 450, 469, 289 N.W.2d 570 (1980).
No. 2021AP525-CR

5

Cina went armed to a residence during morning hours on a weekend, when people 

were likely to be home. The State dismisses Cina’s arguments regarding 

alternative scenarios, noting there was no evidence to suggest a struggle or 

accident. The State’s crime scene expert testified that based on the location of the 

spent cartridge, the wound points on Reavers’s head and the blood splatter pattern, 

Reavers was likely standing near a stove in the kitchen and the shooter was 

standing either just inside or just outside the door to a deck several feet away. The 

expert’s opinion was that Reavers “was probably turning away at the time he was 

shot.”

¶10 Cina asserts the State’s response ignores evidence presented by both 

its key eyewitness and its experts. Cina relies on Anita’s testimony that her keys, 

a roll of tape that may have been Cina’s, and the glove with Cina’s DNA were 

found on the kitchen floor after the homicide and she did not know how they got 

there. Cina argues “[i]t is unlikely these items would have ended upon the floor 

absent some sort of struggle.” To the contrary, there are countless other ways 

these items could have been deposited in their respective locations. Cina’s 

assertion that it was most likely a struggle is pure speculation, which does not 

justify an instruction. “The evidence supporting submission of the lesser-included 

offense [instruction] must be relevant and appreciable when viewed in a light most 

favorable to the defendant.” State v. Fleming, 181 Wis. 2d 546, 560, 510 N.W.2d 

837 (Ct. App. 1993).

¶11 To be sure, Cina attempted to create an evidentiary basis for the 

lesser-included instructions at trial. He cross-examined one of the investigating 

officers about the absence of bloody footprints near the items on the kitchen floor, 

questioning clearly designed to suggest that those items were deposited on the 

floor prior to the shooting. On recross, the State explicitly mentioned the notion of 
No. 2021AP525-CR

6

a “struggle,” posing a hypothetical about whether in such a scenario bloody 

footprints would be expected to be found. It does not appear there was 

development of the factual record regarding any evidence that would support the 

notion of a struggle actually having taken place. As a result, the only evidentiary 

basis for the lesser-included instructions Cina points to are a few items strewn on 

the floor (two of which may have been used in the robbery) and the absence of 

bloody footprints near them. As previously stated, this is not a reasonable 

evidentiary basis for an acquittal on the intentional homicide charge and a 

conviction for either felony murder or reckless homicide.

¶12 Cina also relies on the testimony by an investigating officer who 

explicitly mentioned the possibility of a struggle. However, the testimony was 

offered to disprove that a struggle had taken place. The officer testified that while 

Reavers was in the hospital, he swabbed Reavers’s hands and fingernails for DNA. 

When asked by the prosecutor why he did this, he responded, “Well, there is what 

is called touch DNA, and in a case like this where it appeared maybe there was a 

struggle, I was hoping during that struggle, Mr. Reavers would have secured some 

of the suspect’s DNA on his fingers or underneath his fingernails.” The State 

established at trial that there was, in fact, no DNA other than Reavers’s found on 

his hands. The mere fact that one officer contemplated the possibility of a struggle 

and attempted to preserve evidence to determine whether that happened does not 

establish an evidentiary basis for the lesser-included instructions Cina desired. 

¶13 Additionally, though unmentioned by Cina, we note that the glove 

found at the scene contained two minor DNA profiles in addition to the major 

profile belonging to Cina. These two minor profiles could not be used for 

comparative purposes because there was too little DNA, and any inference that 

one of those profiles was Reavers’s would be pure speculation. First, not even the 
No. 2021AP525-CR

7

gender of the minor contributors could be determined from the samples. Second, 

the gloves’ whereabouts were not accounted for during the weeks prior to the 

shooting, after the individual the gloves belonged to had left them in Cina’s 

basement. As a result, there are any number of possibilities other than a struggle 

for how the gloves could have come to contain the DNA of unspecified other 

individuals. 

¶14 Cina also relies on the testimony of the medical examiner, who was 

asked whether she saw “any injuries that would be consistent with a struggle or 

with self-defense-type wounds.” The examiner testified that Reavers had “hitting 

abrasions, which are skin scrapes in the midline of the back of the head and on the 

right cheek.” However, she could not testify when those injuries were sustained or 

how they occurred. Again, this testimony was insufficient to warrant the lesserincluded instructions. 

¶15 Cina additionally argues that his “purported statements to his 

associates and wife,” while powerful evidence that he was the shooter, do not 

demonstrate his intent to kill. The most significant of these statements for 

purposes of the arguments presented here was Marco Dejesus’s testimony that 

after the shooting, Cina told him the person he shot was “trying to be a hero.” We 

agree with the State that Cina’s statements to others were highly inculpatory and, 

to the extent they spoke to his intent at all, indeed suggested that Cina intended to 

kill Reavers. 

¶16 For the reasons explained in State v. Borrell, 167 Wis. 2d 749, 780-

81, 482 N.W.2d 883 (1992), opinion clarified on other grounds by State v. Greve, 

2004 WI 69, 272 Wis. 2d 444, 681 N.W.2d 479, Cina’s statements to others were 

insufficient to establish an evidentiary basis for the desired lesser-included 
No. 2021AP525-CR

8

instructions. Borrell discussed the specificity necessary for a defendant’s afterthe-fact exclamations to justify such instructions. None of the statements Cina 

made to his associates or to his wife plausibly suggested that Cina lacked intent to 

kill at the time of the offense.

By the Court.—Judgment affirmed.

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

RULE 809.23(1)(b)5.