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, hazardous inhalant, of a controlled substance or controlled substance analog under
ch. 961, of any combination of an alcohol beverage, hazardous inhalant, 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;
2001 a. 109;
2003 a. 97,
223;
2005 a. 273,
277,
435;
2007 a. 27,
97,
127;
2009 a. 28,
276;
2011 a. 35;
2013 a. 83,
214,
265.
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 (1973).
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, 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
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 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),
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 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 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 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]
939.25
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),
96-2184.
939.31 Annotation
There is a distinction between conspiracy as a substantive inchoate crime under s. 939.31 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 he or she 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(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)(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(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
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(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.
