Chapter 939

939.22 Annotation An unloaded pellet gun qualified as a “dangerous weapon” under sub. (10) in that it was designed as a weapon and, when used as a bludgeon, was capable of producing great bodily harm. State v. Antes, 74 Wis. 2d 317, 246 N.W.2d 671 (1976).

939.22 Annotation A jury could reasonably find that numerous cuts and stab wounds constituted “serious bodily injury” under sub. (14) even though there was no probability of death, no permanent injury, and no damage to any member or organ. The phrase “or other serious bodily injury” was designed as an intentional broadening of the scope of the statute to include bodily injuries that were serious, although not of the same type or category as those recited in the statute. La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976).

939.22 Annotation A jury must find that acts of prostitution were repeated or were continued in order to find that premises are “a place of prostitution” under sub. (24). Johnson v. State, 76 Wis. 2d 672, 251 N.W.2d 834 (1977).

939.22 Annotation Sub. (14), either on its face or as construed in La Barge, 74 Wis. 2d 327 (1976), is not unconstitutionally vague. Cheatham v. State, 85 Wis. 2d 112, 270 N.W.2d 194 (1978).

939.22 Annotation Definitions of “under the influence” in this section and in s. 346.63 (1) (a) are equivalent. State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986).

939.22 Annotation To determine whether an infant was “born alive” under sub. (16), the s. 146.71 standard to determine death is applied, as, “if one is not dead he is indeed alive.” State v. Cornelius, 152 Wis. 2d 272, 448 N.W.2d 434 (Ct. App. 1989).

939.22 Annotation A dog may be a dangerous weapon under sub. (10). State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Ct. App. 1992).

939.22 Annotation Portions of the defendant’s anatomy are not dangerous weapons under sub. (10). State v. Frey, 178 Wis. 2d 729, 505 N.W.2d 786 (Ct. App. 1993).

939.22 Annotation An automobile may constitute a dangerous weapon under sub. (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996), 95-0791.

939.22 Annotation A firearm with a trigger lock is within the definition of a dangerous weapon under sub. (10). State v. Norris, 214 Wis. 2d 25, 571 N.W.2d 857 (Ct. App. 1997), 96-2158.

939.22 Annotation When a mother agreed to the father taking a child on a camping trip, but the father actually intended to permanently take the child and did abscond to Canada with the child, the child was taken based on the mother’s “mistake of fact,” which under sub. (48) rendered the taking of the child to be “without consent” and in violation of s. 948.31. State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.

939.22 Annotation The definitions in subs. (9) and (9g) are sufficiently specific that when incorporated into a probation condition they provide fair and adequate notice as to the expected course of conduct and provide an adequate standard of enforcement. State v. Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999), 98-2490.

939.22 Annotation Sub. (19) includes female and male breasts as each is “the breast of a human being.” The touching of a boy’s breast constitutes “sexual contact” within the meaning of s. 948.02 (2). State v. Forster, 2003 WI App 29, 260 Wis. 2d 149, 659 N.W.2d 144, 02-0602.

939.22 Annotation “Materially impaired” as used in sub. (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court’s response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.

939.22 Annotation Shooting a person in the thigh at a range of 16 to 18 feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the victim’s leg and is injury constituting “great bodily harm” within the meaning of sub. (14). The fact that the defendant’s conduct was intended to neutralize the threat posed by the victim did not negate the fact that, by firing the shotgun at the victim’s thigh, the defendant intended to cause great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to the victim. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

939.23 939.23 Criminal intent.

939.23(1) (1) When criminal intent is an element of a crime in chs. 939 to 951, 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”.

939.23(2) (2) “Know” requires only that the actor believes that the specified fact exists.

939.23(3) (3) “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”.

939.23(4) (4) “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.

939.23(5) (5) 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.

939.23(6) (6) 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.

939.23 History History: 1979 c. 89; 1987 a. 332 s. 64; 1987 a. 399; 1993 a. 486.

939.23 Note 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]

939.23 Annotation A person need not foresee or intend the specific consequences of an act in order to possess the requisite criminal intent and is presumed to intend the natural and probable consequences of the act. State v. Gould, 56 Wis. 2d 808, 202 N.W.2d 903 (1973).

939.23 Annotation Instructions on intent to kill created a permissible rebuttable presumption that shifted the burden of production to the defendant, but not the burden of persuasion. Muller v. State, 94 Wis. 2d 450, 289 N.W.2d 570 (1980).

939.23 Annotation The court properly refused to instruct the jury on a “mistake of fact” defense when the accused claimed that the victim moved into the path of a gunshot intended only to frighten the victim. State v. Bougneit, 97 Wis. 2d 687, 294 N.W.2d 675 (Ct. App. 1980).

939.23 Annotation The constitutionality of sub. (3) is upheld. State v. Smith, 170 Wis. 2d 701, 490 N.W.2d 40 (Ct. App. 1992).

939.23 Annotation The trial court’s wholesale exclusion of the defendant’s proffered expert and lay testimony regarding posttraumatic stress disorder from the guilt phase of a murder trial without valid justification violated the defendant’s right to present a defense and to testify on her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).

939.24 939.24 Criminal recklessness.

939.24(1) (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 that for purposes of ss. 940.02 (1m), 940.06 (2) and 940.23 (1) (b) and (2) (b), “criminal recklessness” means that the actor creates an unreasonable and substantial risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another and the actor is aware of that risk.

939.24(2) (2) Except as provided in ss. 940.285, 940.29, 940.295, and 943.76, if criminal recklessness is an element of a crime in chs. 939 to 951, the recklessness is indicated by the term “reckless” or “recklessly”.

939.24 History History: 1987 a. 399; 1989 a. 56 s. 259; 1993 a. 445; 1997 a. 295; 2001 a. 109; 2013 a. 307.

939.24 Note 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.

939.24 Note 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]

939.24 Annotation There is no crime of “attempted homicide by reckless conduct” since the completed offense does not require intent while any attempt must demonstrate intent. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).

939.24 Annotation Felony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrated that the defendant in this case forced his way into a building and started shooting with two guns, which was indicative of an intent to recklessly endanger the safety of those inside—a felony. Therefore, the defendant was convicted of a valid crime. State v. Mays, 2022 WI App 24, 402 Wis. 2d 162, 975 N.W.2d 649, 21-0765.

939.24 Annotation With respect to first-degree reckless injury under s. 940.23 (1) (a), a successful assertion of self-defense under s. 939.48 (1) negates an element of the crime, rendering self-defense a negative defense rather than an affirmative defense. Because, under sub. (1), the “criminally reckless conduct” element of reckless injury requires proof that the defendant has created an “unreasonable” and substantial risk of death or great bodily harm to another person, proof that the defendant reasonably believed that the other person posed a risk of death or great bodily harm to himself and that the use of force was necessary to eliminate that risk will necessarily preclude a finding that the defendant’s use of force was unreasonable and criminally reckless. Once a defendant establishes the existence of a statutory affirmative defense, Wisconsin law imposes on the state the burden of disproving the defense beyond a reasonable doubt. Brown v. Eplett, 48 F.4th 543 (2022).

939.24 Annotation Due Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.

939.25 939.25 Criminal negligence.

939.25(1) (1) In this section, “criminal negligence” means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another, except that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24 (2), “criminal negligence” means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another.

939.25(2) (2) If criminal negligence is an element of a crime in chs. 939 to 951 or s. 346.62, the negligence is indicated by the term “negligent” or “negligently”.

939.25(3) (3) This section does not apply to s. 948.21.

939.25 History History: 1987 a. 399; 1989 a. 56 s. 259; 1997 a. 180, 295; 2017 a. 283.

939.25 Note 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]

939.25 Annotation The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).

subch. II of ch. 939 SUBCHAPTER II

INCHOATE CRIMES

939.30 939.30 Solicitation.

939.30(1) (1) Except as provided in sub. (2) and s. 961.455, whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class H felony.

939.30(2) (2) For a solicitation to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class F felony. For a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.

939.30 History History: 1977 c. 173; 1989 a. 121; 1991 a. 153; 1995 a. 448; 2001 a. 109.

939.30 Annotation Prosecuting for solicitation under this section, rather than under s. 944.30 for prostitution, did not deny equal protection. Sears v. State, 94 Wis. 2d 128, 287 N.W.2d 785 (1980).

939.30 Annotation Section 939.05 (2) (c) does not make renunciation or withdrawal a defense to the crime of solicitation. State v. Boehm, 127 Wis. 2d 351, 379 N.W.2d 874 (Ct. App. 1985).

939.30 Annotation When “A” solicits “B” to solicit “A” to commit perjury, “A” is guilty of solicitation. State v. Manthey, 169 Wis. 2d 673, 487 N.W.2d 44 (Ct. App. 1992).

939.30 Annotation The crime of solicitation does not require that the actor know with certainty whether an injury will in fact result from the solicitee’s conduct. State v. Kloss, 2019 WI App 13, 386 Wis. 2d 314, 925 N.W.2d 563, 18-0651.

939.31 939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4) and 961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.

939.31 History History: 1977 c. 173; 1981 c. 118; 1985 a. 328; 1995 a. 448.

939.31 Annotation A conspiracy may be unilateral; a person can enter into a conspiracy to accomplish a criminal objective in which only the defendant has a criminal intent. State v. Sample, 215 Wis. 2d 487, 573 N.W.2d 187 (1998), 96-2184.

939.31 Annotation When the object of a conspiracy is the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. State v. Jackson, 2004 WI App 190, 276 Wis. 2d 697, 688 N.W.2d 688, 03-2066.

939.31 Annotation There is a distinction between conspiracy as a substantive inchoate crime under this section and conspiracy as a theory of prosecution for a substantive crime under s. 939.05 (2) (c). State v. Jackson, 2005 WI App 104, 281 Wis. 2d 137; 701 N.W.2d 42, 04-1603.

939.31 Annotation The agreement to commit a crime that is necessary for a conspiracy may be demonstrated by circumstantial evidence and need not be express; a tacit understanding of a shared goal is sufficient. The intent to commit the crime may be inferred from the person’s conduct. A stake in the venture is not a necessary element of the crime although evidence of a stake in the venture may be persuasive of the degree of the party’s involvement in the crime. State v. Routon, 2007 WI App 178, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557.

939.31 Annotation A person may be a member of a conspiracy—in particular, a conspiracy to manufacture a controlled substance—based on the person’s sale of goods that are not illegal to sell or possess. One does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless the person knows of the conspiracy, the inference of which knowledge cannot be drawn from mere knowledge that the buyer will use the goods illegally. The gist of the conspiracy is the seller’s intent, when given effect by an overt act to further, promote, and cooperate in the buyer’s intended illegal use. There must be clear, unequivocal evidence of the seller’s knowledge of the buyer’s intended illegal use. State v. Routon, 2007 WI App 178, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557.

939.31 Annotation Under a unilateral conspiracy, a person who intends to accomplish the objects of the conspiracy is guilty even though the other members of the conspiracy never intended that a crime be committed. This same logic applies to the next step: that is, when the fulfillment of the conspiracy is not only highly unlikely, but is legally impossible. State v. Huff, 2009 WI App 92, 319 Wis. 2d 258, 769 N.W.2d 154, 08-2664.

939.31 Annotation For an act to performed by one of the conspirators in furtherance of the conspiracy, an overt act must be done toward the commission of the intended crime that must go beyond mere planning and agreement. However, the act need not, by itself, be an unlawful act or an attempt to commit the crime. If there was an act that was a step toward accomplishing the criminal objective, that is sufficient. In this case, the defendant’s act of communicating to a detective that cocaine was available for immediate delivery was such an overt act. State v. Peralta, 2011 WI App 81, 334 Wis. 2d 159, 800 N.W.2d 512, 10-0563.

939.32 939.32 Attempt.

939.32(1) (1) Generally. Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), except:

939.32(1)(a) (a) Whoever attempts to commit a crime for which the penalty is life imprisonment is guilty of a Class B felony.

939.32(1)(bm) (bm) Whoever attempts to commit a Class I felony, other than one to which a penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. or b. is being applied, is guilty of a Class A misdemeanor.

939.32(1)(c) (c) Whoever attempts to commit a crime under ss. 940.42 to 940.45 is subject to the penalty for the completed act, as provided in s. 940.46.

939.32(1)(cm) (cm) Whoever attempts to commit a crime under s. 941.21 is subject to the penalty provided in that section for the completed act.

939.32(1)(cr) (cr) Whoever attempts to commit a crime under s. 948.055 (1) is subject to the penalty for the completed act, as provided in s. 948.055 (2).

939.32(1)(d) (d) Whoever attempts to commit a crime under s. 948.07 is subject to the penalty provided in that section for the completed act.

939.32(1)(de) (de) Whoever attempts to commit a crime under s. 948.075 (1r) is subject to the penalty provided in that subsection for the completed act.

939.32(1)(e) (e) Whoever attempts to commit a crime under s. 948.605 (3) (a) is subject to the penalty provided in that paragraph for the completed act.

939.32(1)(f) (f) Whoever attempts to commit a crime under s. 946.79 is subject to the penalty provided in that section for the completed act.

939.32(1)(g) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).

939.32(1g) (1g) Maximum penalty. The maximum penalty for an attempt to commit a crime that is punishable under sub. (1) (intro.) is as follows:

939.32(1g)(a) (a) The maximum fine is one-half of the maximum fine for the completed crime.

939.32(1g)(b) (b)

939.32(1g)(b)1. 1. If neither s. 939.62 (1) nor s. 961.48 is being applied, the maximum term of imprisonment is one-half of the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.

939.32(1g)(b)2. 2. If either s. 939.62 (1) or 961.48 is being applied, the maximum term of imprisonment is determined by the following method:

939.32(1g)(b)2.a. a. Multiplying by one-half the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.

939.32(1g)(b)2.b. b. Applying s. 939.62 (1) or 961.48 to the product obtained under subd. 2. a.

939.32(1m) (1m) Bifurcated sentences. If the court imposes a bifurcated sentence under s. 973.01 (1) for an attempt to commit a crime that is punishable under sub. (1) (intro.), the following requirements apply:

939.32(1m)(a) (a) Maximum term of confinement for attempt to commit classified felony.

939.32(1m)(a)1. 1. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and neither s. 939.62 (1) nor s. 961.48 is being applied, the maximum term of confinement in prison is one-half of the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.

939.32(1m)(a)2. 2. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and either s. 939.62 (1) or 961.48 is being applied, the court shall determine the maximum term of confinement in prison by the following method:

939.32(1m)(a)2.a. a. Multiplying by one-half the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statutes listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.