939.22(28)
(28) "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.
939.22(30)
(30) "Public officer"; "public employee". 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 employee" 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.
939.22(32)
(32) "Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.
939.22(34)
(34) "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.
939.22(36)
(36) "Sexual intercourse" requires only vulvar penetration and does not require emission.
939.22(38)
(38) "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.
939.22(40)
(40) "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.
939.22(42)
(42) "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.
939.22(44)
(44) "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.
939.22(48)
(48) "Without consent" means no consent in fact or that consent is given for one of the following reasons:
939.22(48)(a)
(a) 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
939.22(48)(b)
(b) Because the actor purports to be acting under legal authority; or
939.22(48)(c)
(c) 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.
939.22 History
History: 1971 c. 219;
1973 c. 336;
1977 c. 173;
1979 c. 89,
221;
1981 c. 79 s.
17;
1981 c. 89,
348;
1983 a. 17,
459;
1985 a. 146 s.
8;
1987 a. 332,
399;
1993 a. 98,
213,
227,
441,
486;
1995 a. 69,
436,
448;
1997 a. 143,
295.
939.22 Annotation
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 Wis. 2d 288,
212 N.W.2d 113.
939.22 Annotation
An unloaded pellet gun qualifies as a "dangerous weapon" under sub. (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 Wis. 2d 317,
246 N.W.2d 671.
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. La Barge v. State,
74 Wis. 2d 327,
246 N.W.2d 794.
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.
939.22 Annotation
Sub. (14), either on its face or as construed in La Barge, 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
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).
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).
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 s. 939.22 (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).
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).
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 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 his or her act in order to possess the requisite criminal intent and he or she is presumed to intend the natural and probable consequences. State v. Gould,
56 Wis. 2d 808,
202 N.W.2d 903.
939.23 Annotation
Instructions on intent to kill created a mandatory 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 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 and
940.295, 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(3)
(3) 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.
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 Annotation
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]
939.25
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 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).
INCHOATE CRIMES.
939.30(1)(1) Except as provided in
sub. (2) and
ss. 948.35 and
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 D 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 C felony. For a solicitation to commit a Class E felony, the actor is guilty of a Class E felony.
939.30 Annotation
Prosecuting for solicitation under s. 939.30, 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).
939.31
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 Annotation
A conspiracy may be unilateral; a person can enter into a conspiracy to accomplish a criminal objective where only the defendant has a criminal intent. State v. Sample,
215 Wis. 2d 486,
573 N.W.2d 187 (1998).
939.32(1)(1) Whoever attempts to commit a felony or a crime specified in
s. 940.19,
940.195 or
943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; 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)(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)(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)(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(2)
(2) Whoever attempts to commit a misdemeanor under
s. 943.70 is subject to:
939.32(2)(a)
(a) A Class D forfeiture if it is the person's first violation under
s. 943.70.
939.32(2)(b)
(b) A Class C forfeiture if it is the person's 2nd violation under
s. 943.70.
939.32(2)(c)
(c) A Class B forfeiture if it is the person's 3rd violation under
s. 943.70.
939.32(2)(d)
(d) A Class A forfeiture if it is the person's 4th or subsequent violation under
s. 943.70.
939.32(3)
(3) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
939.32 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.
939.32 Annotation
Attempted 1st degree murder was shown where only the fact of the gun misfiring and the action of the intended victim prevented completion of the crime. Austin v. State,
52 Wis. 2d 716,
190 N.W.2d 887.
939.32 Annotation
The victim's kicking of the defendant in the mouth and other resistance was a valid extraneous factor preventing the completion of the crime, an essential requirement for the crime of attempted rape. Adams v. State,
57 Wis. 2d 515,
204 N.W.2d 657.
939.32 Annotation
The screams and struggles of an rape intended victim were an effective intervening extrinsic force not under the defendant's control. Leach v. State,
83 Wis. 2d 199,
265 N.W.2d 495 (1978).
939.32 Annotation
The failure to consummate the crime is not an essential element of criminal attempt under (2). Berry v. State,
90 Wis. 2d 316,
280 N.W.2d 204 (1979).
939.32 Annotation
The intervention of an extraneous factor is not an essential element of criminal attempt. Hamiel v. State,
92 Wis. 2d 656,
285 N.W.2d 639 (1979).
939.32 Annotation
To prove attempt, the state must prove intent to commit a specific crime accompanied by sufficient acts to demonstrate unequivocally that it was improbable that the accused would have desisted of his or her own free will. State v. Stewart,
143 Wis. 2d 28,
420 N.W.2d 44 (1988).
