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
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 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 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).
939.31
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 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(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. 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)(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(2m)
(2m)
Misdemeanor crimes against financial institution. Whoever attempts to commit a crime under s.
943.81,
943.82 (1),
943.83, or
943.84 that is a Class A misdemeanor under s.
943.91 (1) is subject to the penalty for a Class B misdemeanor.
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 first-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 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 the accused's 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),
97-1558.
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),
97-2235.
939.32 Annotation
Some crimes include attempt and cannot be combined with the general attempt statute. One cannot attempt to attempt to cause. State v. DeRango,
229 Wis. 2d 1,
599 N.W.2d 27 (Ct. App. 1999),
98-0642.
939.32 Annotation
Neither
Melvin,
49 Wis. 2d 246 (1970), nor
Briggs,
218 Wis. 2d 61 (1998), purport to establish a general rule or address whether possession crimes may be charged as attempted crimes. There is no general rule that a crime may be charged as an attempt only when the crime has intent as an element. Unlike crimes with no state of mind element, the felon in possession of a firearm offense requires proof of knowledge. This makes the offense amenable, even under
Briggs, to be charged as an attempted crime. State v. Henning,
2013 WI App 15,
346 Wis. 2d 246,
828 N.W.2d 235,
10-2449.
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 is involuntarily produced and does one of the following:
939.42(1)
(1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.
939.42(2)
(2) Negatives the existence of a state of mind essential to the crime.
939.42 History
History: 1987 a. 399;
2013 a. 307.
939.42 Annotation
To be relieved from responsibility for criminal acts, it is not enough for a defendant to establish that the defendant was under the influence of intoxicating beverages; the defendant must establish that degree of intoxication that means the defendant 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
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).
