¶ 86. {dissenting). I join the majority in reaffirming our previous decisions holding that when evaluating whether a defendant's conduct reflects utter disregard for human life, the factfinder should examine the totality of the circumstances, including all relevant conduct before, during, and after a crime. I disagree, however, with the majority's application of this rule of law to the jury instruction in the present case.
¶ 87. I conclude that the supplemental instruction was ambiguous and that Burris has shown that there is a reasonable likelihood that the instruction misled the jury about a critical element that distinguishes the charged crime from second-degree reckless injury.
¶ 88. During deliberations in the present case, the jury posed the following question to the circuit court about the jury instructions: "Regarding the element of utter disregard, all other facts and circumstances relating to the incident, do we consider facts and circumstances after the shooting?"
¶ 89. The jury's confusion about interpreting the instruction and determining what evidence it might consider is apparent from the question asked the circuit court.
¶ 90. Before the circuit court could answer this question, the jury posed another question in writing, again with regard to the element of utter disregard: "Should we consider facts and circumstances after the shooting in determining utter disregard?"
*125¶ 91. On the basis of our past cases interpreting the "utter disregard for human life" element and the majority decision today, the correct answer to each of the jury's questions was "yes." Instead of this simple affirmative response, the circuit court gave the jury a supplemental instruction, extracting an excerpt from State v. Jensen, 2000 WI 84, ¶ 32, 236 Wis. 2d 521, 613 N.W.2d 170. The following supplemental instruction is the basis for Burris's assertion that the jury instructions were confusing and misled the jury to apply the instruction in an unconstitutional manner:
After-the-fact regard for human life does not negate "utter disregard" otherwise established by the circumstances before and during the crime. It may be considered by the factfinder as a part of the total factual picture, but it does not operate to preclude a finding of utter disregard for human life.1
¶ 92. The majority concludes that the circuit court's responding to the jury's question by giving the jury the Jensen supplemental instruction "was potentially ambiguous."2
¶ 93. I conclude that the circuit court's response was ambiguous. The Jensen supplemental instruction, taken out of the context of the Jensen case, is at odds with the "totality of the circumstances" approach reaffirmed by the majority today. The Jensen supplemental instruction language does not explain that the jury is to consider the totality of the circumstances, including Burris's actions before, during, and after the commission of the crime, in evaluating whether he acted with utter disregard for human life.
*126¶ 94. I agree with the court of appeals that when "the Jensen language was read to the jury in answer to the question whether they could even consider after-the-fact actions, there is a reasonable likelihood that the jury interpreted the answer as suggesting that the trial court was implying that Burris's after-the-fact conduct was not important or compelling, that it should not be considered equally with other circumstances or that no amount of after-the-fact regard for human life could negate early behavior suggesting disregard for human life." State v. Burris, No. 2009AP956-CR, unpublished slip op., ¶ 32 (Wis. Ct. App. Jan. 26, 2010) (emphasis in original).
¶ 95. The majority opinion acknowledges that the Jensen language quoted in the supplemental jury instruction "was potentially ambiguous" when taken out of context.3 The majority advises the Criminal Jury Instruction Committee to refrain from quoting Jensen out of context.4 These statements are telling. If Jensen's language taken out of context does not have a reasonable likelihood of misleading the jury, then why does the majority issue this advisory?
¶ 96. The Jensen language was appropriate in the context of that case. The Jensen court applied a "sufficiency of the evidence" standard of review, a highly deferential standard.5 In context, the quoted language from Jensen rejected Jensen's argument that his showing of some regard for human life after the crime should have precluded the jury's finding that he acted with utter disregard for human life.6
*127¶ 97. As the majority correctly points out, this language in Jensen should not be construed to mean that post-crime conduct is entitled to less weight than conduct before or during the crime.7
¶ 98. Yet, when taken out of context, the Jensen language "was potentially ambiguous," making it reasonably likely that the jury applied the supplemental instruction in an unconstitutional manner.
¶ 99. The Jensen supplemental instruction was misleading because it implied that if the jury were to find that Burris's conduct before and during the shooting showed utter disregard for human life, then a finding that he displayed some regard for human life after the shooting could not negate the finding of utter disregard. If the jury interpreted the instruction in this manner, then there is a reasonable likelihood that the jury was misled to believe that Burris's post-shooting conduct was either not entitled to weight or that it was entitled to less weight than his conduct before and during the shooting.
¶ 100. Thus, there is a reasonable likelihood that the jury instruction misled the jury into believing that the State did not have the burden of proving beyond a reasonable doubt that Burris exhibited utter disregard for human life under the totality of the circumstances, and instead only had the burden of proving Burris's actions before and during the commission of crime evinced utter disregard.
¶ 101. I agree with the majority that we must view the supplemental instruction in light of the proceeding as a whole, rather than in isolation.8 The majority relies on the "extensive testimony" presented *128at trial regarding Burris's after-the-fact conduct, as well as the use of that conduct by counsel in closing arguments, to determine that Burris has not established a reasonable likelihood that the ambiguous instruction misled the jury into thinking it could not consider Burris's after-the-fact conduct in determining the "utter disregard for human life" element of the crime. Yet, as the majority states, after the "extensive testimony," the closing arguments, and the pattern jury instruction, "the jury was unsure whether it could consider after-the-fact conduct."9
¶ 102. Although the supplemental instruction was but one part of the entire proceeding, it is clear that the supplemental instruction muddled the law regarding an element of central importance to Burris's defense, an element the jury focused on and was confused about.
¶ 103. While the supplemental instruction may have been a correct statement of the law in the context of Jensen, I conclude that it was reasonably likely in the present case to confuse the jurors and cause them to apply the instruction in an unconstitutional manner because the Jensen language was taken out of its proper context.
¶ 104. For the reasons set forth, I dissent.
State v. Jensen, 2000 WI 84, ¶ 32, 236 Wis. 2d 521, 613 N.W.2d 170.
Majority op., ¶ 62.
Majority op., ¶ 62.
Majority op., ¶ 64.
Jensen, 236 Wis. 2d 521, ¶ 23.
Jensen, 236 Wis. 2d 521, ¶¶ 30-32.
Majority op., ¶ 34.
Majority op., ¶ 45
Majority op., ¶ 62.