(dissenting). I join Justice Geske's dissent regarding the erroneous aggravated battery instruction. I write separately because I conclude that the circuit court should have also given the jury instruction on the lesser-included offense of simple battery.
When a reasonable view of the record, the evidence and any testimony other than that part of the defendant's testimony which is exculpatory would support an acquittal on the greater offense and conviction on the lesser-included offense, the lesser-included offense must be submitted to the jury. State v. Wilson, 149 Wis. 2d 878, 898-900, 440 N.W.2d 534 (1989). In applying this standard, the evidence must be viewed in the light most favorable to the defendant. State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W.2d 317 (1989).
Ample evidence in this case suggests that the defendant committed the lesser-included offense of simple battery while not committing the greater offense of aggravated battery. Numerous witnesses testified that the defendant had participated in the initial fight at the end of the pier, thereby supporting the conclusion that he was guilty of simple battery. At the same time, however, even friends of the victim tes*593tified that some members of the defendant's party walked rather than ran off the pier. None of the three surviving members of the victim's party could identify the defendant in court. Finally, as the majority observes, one of the victim's friends placed the interval between the initial battery and the victim's subsequent jump into the water at close to fifteen minutes.
On the basis of this record, the jury might have concluded that some members of the defendant's party, including the defendant, did not participate in the chase of the victim. The jury might also have concluded that while the defendant participated in the initial battery against the victim, the victim's death was not a natural and probable consequence of that battery. Thus under the facts and circumstances of this case, the jury might well have concluded that the defendant committed simple battery but not aggravated battery.
The majority opinion acknowledges that a foreseeability instruction limiting the defendant's liability to the act he intended to commit as well as its natural and probable consequences would have been appropriate in this case. But the majority concludes that the defendant waived his right to such an instruction by failing to request it. Because the circuit court rejected the defendant's request for a simple battery instruction, a reasonable person in the defendant's position would have concluded that a foreseeability instruction addressed to the natural and probable consequences of that simple battery would have been futile. Hence I would not conclude that the defendant had waived his objection to a foreseeability instruction.
For the reasons set forth, I dissent.