State Wisconsin v. Paul Carrington

After a jury trial, Paul Carrington appeals from a judgment of conviction of two counts of endangering safety by conduct regardless of life while armed, contrary to secs. 941.30 and 939.63(1)(a)3., Stats. Carrington claims that the trial court violated his due process rights when it refused to submit a jury instruction on a lesser included offense and that the evidence was insufficient to support his conviction. We hold that although there was sufficient evidence to sustain Carrington's conviction, the trial court erred in not submitting the lesser included offense instruction of endangering safety by reckless conduct in the use of a dangerous weapon, contrary to sec. 941.20(1)(a), Stats. We therefore reverse and remand this cause for a new trial. The following facts are not disputed. Carrington went to a tavern one summer night and ordered a beer. Apparently as a joke, the bartender spiked Carrington's first beer with rum and then proceeded to pour another beer down the drain. Carrington was not amused. He asked that his beer be replaced. When his request was denied, he sought to help himself by going behind the bar. The bartender was equally unamused and got out his pistol to prevent this action. Incensed, Carrington left the premises and returned shortly with a sawed-off shotgun. He displayed the gun to the bartender and demanded a beer. The bartender complied.