"Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.
"Criminal gang" means an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult, specified in s. 939.22 (21) (a)
; that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
"Criminal gang member" means any person who participates in criminal gang activity, as defined in s. 941.38 (1) (b)
, with a criminal gang.
"Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon, as defined in s. 941.295 (4)
; or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
"Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.
"Human being" when used in the homicide sections means one who has been born alive.
"Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
"Pattern of criminal gang activity" means the commission of, attempt to commit or solicitation to commit 2 or more of the following crimes, or acts that would be crimes if the actor were an adult, at least one of those acts or crimes occurs after December 25, 1993, the last of those acts or crimes occurred within 3 years after a prior act or crime, and the acts or crimes are committed, attempted or solicited on separate occasions or by 2 or more persons:
Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in s. 961.41 (1)
Taking, driving or operating a vehicle, or removing a part or component of a vehicle, without the owner's consent, as prohibited in s. 943.23
"Peace officer" means any person vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.
"Place of prostitution" means any place where a person habitually engages, in public or in private, in nonmarital acts of sexual intercourse, sexual gratification involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact for anything of value.
"Property of another" means property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair, even though the actor may also have a legal interest in the property.
"Public officer"; "public employe". A "public officer" is any person appointed or elected according to law to discharge a public duty for the state or one of its subordinate governmental units. A "public employe" is any person, not an officer, who performs any official function on behalf of the state or one of its subordinate governmental units and who is paid from the public treasury of the state or subordinate governmental unit.
"Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.
"Sexual contact" means the intentional touching of the clothed or unclothed intimate parts of another person with any part of the body clothed or unclothed or with any object or device, the intentional touching of any part of the body clothed or unclothed of another person with the intimate parts of the body clothed or unclothed, or the intentional penile ejaculation of ejaculate or intentional emission of urine or feces upon any part of the body clothed or unclothed of another person, if that intentional touching, ejaculation or emission is for the purpose of sexual humiliation, sexual degradation, sexual arousal or gratification.
"Sexual intercourse" requires only vulvar penetration and does not require emission.
"Substantial bodily harm" means bodily injury that causes a laceration that requires stitches; any fracture of a bone; a burn; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.
"Transfer" means any transaction involving a change in possession of any property, or a change of right, title, or interest to or in any property.
"Under the influence of an intoxicant" means that the actor's ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcohol beverage, of a controlled substance or controlled substance analog under ch. 961
, of any combination of an alcohol beverage, controlled substance and controlled substance analog, or of any other drug or of an alcohol beverage and any other drug.
"Vehicle" means any self-propelled device for moving persons or property or pulling implements from one place to another, whether such device is operated on land, rails, water, or in the air.
"Without consent" means no consent in fact or that consent is given for one of the following reasons:
Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the victim's immediate family; or
Because the actor purports to be acting under legal authority; or
Because the victim does not understand the nature of the thing to which the victim consents, either by reason of ignorance or mistake of fact or of law other than criminal law or by reason of youth or defective mental condition, whether permanent or temporary.
History: 1971 c. 219
; 1973 c. 336
; 1977 c. 173
; 1979 c. 89
; 1981 c. 79
; 1981 c. 89
; 1983 a. 17
; 1985 a. 146
; 1987 a. 332
; 1993 a. 98
; 1995 a. 69
It was for the jury to determine whether a soft drink bottle, with which the victim was hit on the head, constituted a dangerous weapon. Actual injury to the victim is not required. Langston v. State, 61 W (2d) 288, 212 NW (2d) 113.
Unloaded pellet gun qualifies as "dangerous weapon" under (10) in that it was designed as a weapon and, when used as a bludgeon, is capable of producing great bodily harm. State v. Antes, 74 W (2d) 317, 246 NW (2d) 671.
Jury could reasonably find that numerous cuts and stab wounds constituted "serious bodily injury" under (14) even though there was no probability of death, no permanent injury, and no damage to any member or organ. La Barge v. State, 74 W (2d) 327, 246 NW (2d) 794.
Jury must find that acts of prostitution were repeated over enough or were continued long enough in order to find that premises are "a place of prostitution" under (24). Johnson v. State, 76 W (2d) 672, 251 NW (2d) 834.
Sub. (14), either on its face or as construed in La Barge v. State, 74 W (2d) 327, is not unconstitutionally vague. Cheatham v. State, 85 W (2d) 112, 270 NW (2d) 194 (1978).
Definitions of "under the influence" in this section and in 346.63 (1) (a) are equivalent. State v. Waalen, 130 W (2d) 18, 386 NW (2d) 47 (1986).
To determine whether infant was "born alive" under (16) for purposes of the homicide laws, court applies 146.71. State v. Cornelius, 152 W (2d) 272, 448 NW (2d) 434 (Ct. App. 1989).
Dog may be dangerous weapon under (10). State v. Sinks, 168 W (2d) 245, 483 NW (2d) 286 (Ct. App. 1992).
Portions of the defendant's anatomy are not dangerous weapons under sub. (10). State v. Frey, 178 W (2d) 729, 505 NW (2d) 786 (Ct. App. 1993).
An automobile may constitute a dangerous weapon under sub. (10). State v. Bidwell, 200 W (2d) 200, 546 NW (2d) 507 (Ct. App. 1996).
Criminal intent. 939.23(1)(1)
When criminal intent is an element of a crime in chs. 939
, such intent is indicated by the term "intentionally", the phrase "with intent to", the phrase "with intent that", or some form of the verbs "know" or "believe".
"Know" requires only that the actor believes that the specified fact exists.
"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition, except as provided in sub. (6)
, the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally".
"With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.
Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section.
Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.
Judicial Council Note, 1988: Subs. (3) and (4) are conformed to the formulation of s. 2.02 (2) (b) ii of the model penal code. [Bill 191-S]
A person need not foresee or intend the specific consequences of his act in order to possess the requisite criminal intent and he is presumed to intend the natural and probable consequences. State v. Gould, 56 W (2d) 808, 202 NW (2d) 903.
See note to 903.03 citing Muller v. State, 94 W (2d) 450, 289 NW (2d) 570 (1980).
Court properly refused to instruct jury on "mistake of fact" defense where accused claimed that victim moved into path of gunshot intended only to frighten victim. State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
See note to 951.02, citing State v. Stanfield, 105 W (2d) 553, 314 NW (2d) 339.
Constitutionality of sub. (3) upheld. State v. Smith, 170 W (2d) 701, 490 NW (2d) 40 (Ct. App. 1992).
Criminal recklessness. 939.24(1)
In this section, "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.
Except as provided in ss. 940.285
, if criminal recklessness is an element of a crime in chs. 939
, the recklessness is indicated by the term "reckless" or "recklessly".
A voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness if, had the actor not been in that condition, he or she would have been aware of creating an unreasonable and substantial risk of death or great bodily harm to another human being.
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal recklessness, the culpable mental state of numerous offenses. Recklessness requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor's subjective awareness of that risk.
Sub. (3) continues the present rule that a voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness. Ameen v. State, 51 Wis. 2d 175
, 185 (1971). Patterned on s. 2.08 of the model penal code, it premises liability on whether the actor would have been aware if not in such condition of the risk of death or great bodily harm. The commentaries to s. 2.08, model penal code, state the rationale of this rule in extended fashion. [Bill 191-S]
Criminal negligence. 939.25(1)(1)
In this section, "criminal negligence" means ordinary negligence to a high degree, consisting of conduct which the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.
If criminal negligence is an element of a crime in chs. 939
or s. 346.62
, the negligence is indicated by the term "negligent".
History: 1987 a. 399
; 1989 a. 56
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal negligence, patterned on prior ss. 940.08 (2), 940.24 (2) and 941.01 (2). Criminal negligence means the creation of a substantial and unreasonable risk of death or great bodily harm to another, of which the actor should be aware. [Bill 191-S]
The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 W (2d) 180, 515 NW (2d) 493 (Ct. App. 1994).