02-0538 State v. Dibble

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“Essentially, Dibble is arguing it is impossible for a person to commit aggravated battery without also engaging in first-degree recklessly endangering safety. On its face, this contention has a certain appeal. …

It is tempting to say anyone who acts with intent to cause these types of injuries is acting without regard for human life. However, a closer examination shows the legislature did not intend first-degree recklessly endangering safety to be a lesser included offense of aggravated battery. …

“Aggravated battery and first-degree recklessly endangering safety differ, however, in their remaining elements, and this is what ultimately disproves Dibble’s argument. Battery requires criminal intent, and endangering safety requires criminal recklessness while showing utter disregard for human life. A crime is a lesser included offense if it is the same crime as the greater one except that the lesser offense requires recklessness and the greater crime requires criminal intent.[citation] In order for this section to apply, however, the crimes must otherwise be the same, which is not the case here. Nothing in the aggravated battery statute parallels the ‘utter disregard’ element in first-degree recklessly endangering safety.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist III, Iron County, Madden, J., Cane, C.J.

Attorneys:

For Appellant: Steven P. Weiss, Madison

For Respondent: David J. Becker, Madison; Martin J. Lipske, Hurley