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,
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(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
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 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 in which only the defendant has a criminal intent. State v. Sample,
215 Wis. 2d 487,
573 N.W.2d 187 (1998).
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)(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(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(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)1.1. If neither
s. 939.62 (1) nor 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(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 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)(b)
(b)
Maximum term of extended supervision for attempt to commit classified felony. The maximum term of extended supervision for an attempt to commit a classified felony is one-half of the maximum term of extended supervision for the completed crime under
s. 973.01 (2) (d).
939.32(1m)(c)
(c)
Maximum term of confinement for attempt to commit unclassified felony or misdemeanor. The court shall determine the maximum term of confinement in prison for an attempt to commit a crime other than a classified felony by applying
s. 973.01 (2) (b) 10. to the maximum term of imprisonment calculated under
sub. (1g) (b).
939.32(2)
(2) Misdemeanor computer crimes. 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) Requirements. 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 (1970).
939.32 Annotation
Attempted 1st degree murder was shown when 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 (1971).
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 a crime, an essential requirement for the crime of attempted rape. Adams v. State,
57 Wis. 2d 515,
204 N.W.2d 657 (1973).
939.32 Annotation
The screams and struggles of an intended rape 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 sub. (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 AnnotationThe crime of attempted manslaughter exists in Wisconsin. State v. Oliver,
108 Wis. 2d 25,
321 N.W.2d 119 (1982). See the Judicial Council Note to s. 940.05.
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).
939.32 Annotation
Subs. (1) and (2) enumerate all offenses that may be prosecuted as attempts. State v. Cvorovic,
158 Wis. 2d 630,
462 N.W.2d 897 (Ct. App. 1990).
939.32 Annotation
The meaning of "have an intent to" in sub. (3) should be defined and interpreted in relation to all criminal statutes. State v. Weeks,
165 Wis. 2d 200,
477 N.W.2d 642 (Ct. App. 1991).
939.32 Annotation
When a sentence for an attempted crime is subject to repeater enhancement, the maximum penalty for the underlying crime is halved under sub. (1), then the enhancer is added to that penalty. State v. Bush,
185 Wis. 2d 716,
519 N.W.2d 645 (Ct. App. 1994).
939.32 Annotation
The intervention of an extraneous factor that prevents the commission of a crime is irrelevant to an attempt to commit the crime unless the factor may negate the intent to commit the crime. That a defendant believed he was acquiring stolen property when the property was not actually stolen did not prevent the prosecution of the defendant for attempt to receive stolen property. State v. Kordas,
191 Wis. 2d 124,
528 N.W.2d 483 (Ct. App. 1995).
939.32 Annotation
Attempted felony murder, s. 940.03, does not exist. Attempt requires intent, and the crime of felony murder is complete without specific intent. State v. Briggs,
218 Wis. 2d 61,
579 N.W.2d 783 (Ct. App. 1998).
939.32 Annotation
The conduct element of sub. (3) is satisfied when the accused engages in conduct that demonstrates that only a circumstance beyond the accused's control could prevent the crime; that it has become too late to repent and withdraw. State v. Henthorn,
218 Wis. 2d 526,
581 N.W.2d 544 (Ct. App. 1998).
939.32 Annotation
Some crimes include attempt and cannot be combined with the general attempt statue. One cannot attempt to attempt to cause. State v. DeRango,
229 Wis. 2d 1,
599 N.W.2d 27 (Ct. App. 1999).
DEFENSES TO CRIMINAL LIABILITY
939.42
939.42
Intoxication. An intoxicated or a drugged condition of the actor is a defense only if such condition:
939.42(1)
(1) Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed; or
939.42(2)
(2) Negatives the existence of a state of mind essential to the crime, except as provided in
s. 939.24 (3).
939.42 History
History: 1987 a. 399.
939.42 Annotation
To be relieved from responsibility for criminal acts, it is not enough for a defendant to establish that he was under the influence of intoxicating beverages; he must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged. State v. Guiden,
46 Wis. 2d 328,
174 N.W.2d 488 (1970).
939.42 Annotation
This section does not afford a defense when drugs were taken voluntarily and the facts demonstrate that there was an intent to kill and conceal the crime. Gibson v. State,
55 Wis. 2d 110,
197 N.W.2d 813 (1972).
939.42 Annotation
Evidence of addiction was properly excluded as a basis for showing "involuntariness." Loveday v. State,
74 Wis. 2d 503,
247 N.W.2d 116 (1976).
939.42 Annotation
Voluntary intoxication instructions were proper when the defendant, suffering from a non-temporary pre-psychotic condition, precipitated a temporary psychotic state by voluntary intoxication. State v. Kolisnitschenko,
84 Wis. 2d 492,
267 N.W.2d 321 (1978).
939.42 Annotation
The intoxication instruction did not impermissibly shift the burden of proof to the accused. State v. Reynosa,
108 Wis. 2d 499,
322 N.W.2d 504 (Ct. App. 1982).
939.42 Annotation
A correct statement of the law under this section should be conveyed to the jury by instructing it that it must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense. State v. Foster,
191 Wis. 2d 14,
528 N.W.2d 22 (Ct. App. 1995).
939.42 Annotation
It is not a requirement of the defense of involuntary intoxication when intoxication is caused by prescription drugs that the defendant did not know of the drug's intoxicating effect. Intoxication resulting from compliance with a physician's advice will not be deemed voluntary just because the defendant was aware of potential adverse side effects. State v. Gardner,
230 Wis. 2d 32,
601 N.W.2d 670 (Ct. App. 1999).
939.42 Annotation
To be entitled to an instruction on involuntary intoxication, the defendant must come forward with credible and sufficient evidence of intoxication to the extent that the defendant was unable to distinguish right from wrong. State v. Gardner,
230 Wis. 2d 32,
601 N.W.2d 670 (Ct. App. 1999).
939.42 Annotation
Alcoholism as a defense. 53 MLR 445.
