939.63 AnnotationPossession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994). See also State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95-0770. 939.63 AnnotationAn automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996). 939.63 AnnotationUnder Peete, 185 Wis. 2d 4 (1994), there is sufficient evidence of possession if the evidence allows a reasonable jury to find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it, even if the defendant did not use or threaten to use it in the commission of the crime. State v. Page, 2000 WI App 267, 240 Wis. 2d 276, 622 N.W.2d 285, 99-2015. 939.63 AnnotationWhen two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549. 939.632939.632 Penalties; violent crime in a school zone. 939.632(1)(a)(a) “School” means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school, or high school. 939.632(1)(c)(c) “School premises” means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration. 939.632(1)(d)3.3. On a school bus or public transportation transporting students to and from a public or private school or to and from a tribal school, as defined in s. 115.001 (15m). 939.632(1)(d)3m.3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus. 939.632(1)(e)1.1. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 (1c), 940.19 (2), (4) or (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1), (2) or (3), 940.235, 940.305, 940.31, 941.20, 941.21, 943.02, 943.06, 943.10 (2), 943.231 (1), 943.32 (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.07, 948.08, 948.085, or 948.30 (2) or under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies. 939.632(2)(2) If a person commits a violent crime in a school zone, the maximum term of imprisonment is increased as follows: 939.632(2)(a)(a) If the violent crime is a felony, the maximum term of imprisonment is increased by 5 years. 939.632(2)(b)(b) If the violent crime is a misdemeanor, the maximum term of imprisonment is increased by 3 months and the place of imprisonment is the county jail. 939.632(3)(a)(a) In addition to any other penalties that may apply to the crime under sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. 939.632(3)(b)(b) The court shall not impose the requirement under par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement. 939.632(4)(4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2). 939.632 AnnotationThe violent crime in a school zone penalty enhancer is not unconstitutional as applied to the defendant. The legislature seeks to deter violent crime near schools in an effort to create a safety zone around schools. The 1,000-foot perimeter is a reasonable distance to try to accomplish this legislative goal. State v. Quintana, 2007 WI App 29, 299 Wis. 2d 234, 729 N.W.2d 776, 06-0499. 939.635939.635 Increased penalty for certain crimes against children committed by a child care provider. If a person commits a violation of s. 948.02, 948.025, or 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4. against a child for whom the person was providing child care for compensation, the maximum term of imprisonment for that crime may be increased by not more than 5 years. 939.635 HistoryHistory: 2011 a. 82; 2015 a. 366. 939.645939.645 Penalty; crimes committed against certain people or property. 939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2): 939.645(1)(b)(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct. 939.645(2)(a)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail. 939.645(2)(b)(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years. 939.645(2)(c)(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years. 939.645(3)(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1). 939.645(4)(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person’s perception or belief regarding another’s race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime. 939.645 AnnotationWhen two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549. 939.645 AnnotationHate Crimes—New Limits on the Scope of First Amendment Protection? Resler. 77 MLR 415 (1994).
939.645 AnnotationPut to the Proof: Evidentiary Considerations in Wisconsin Hate Crime Prosecutions. Read. 89 MLR 453 (2005).
939.645 AnnotationTalking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 AnnotationHate Crimes. Kassel. Wis. Law. Oct. 1992.
RIGHTS OF THE PROSECUTION
939.65939.65 Prosecution under more than one section permitted. Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions. 939.65 HistoryHistory: 1993 a. 227. 939.65 AnnotationDue process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977). 939.65 AnnotationThe district attorney had the discretion to charge the defendant with a Class A misdemeanor offense of sexual intercourse with a child age 16 or older under s. 948.09, a Class I felony offense of exposing intimate parts under s. 948.10 (1), and a Class D felony offense of child enticement with intent to expose intimate parts under s. 948.07 (3). It was not absurd to penalize the defendant for the felony crime of exposing intimate parts, which would be practically necessary for the misdemeanor intercourse to occur. State v. Matthews, 2019 WI App 44, 388 Wis. 2d 335, 933 N.W.2d 152, 18-0845. 939.66939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: 939.66(1)(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged. 939.66(2)(2) A crime which is a less serious type of criminal homicide under subch. I of ch. 940 than the one charged. 939.66(2m)(2m) A crime which is a less serious or equally serious type of battery than the one charged. 939.66(2p)(2p) A crime which is a less serious or equally serious type of violation under s. 948.02 than the one charged. 939.66(2r)(2r) A crime which is a less serious type of violation under s. 943.23 than the one charged. 939.66(3)(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent. 939.66(4)(4) An attempt in violation of s. 939.32 to commit the crime charged. 939.66(4m)(4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under s. 948.22 (2). 939.66(5)(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them. 939.66(6c)(6c) A crime that is a less serious type of violation under s. 940.285 than the one charged. 939.66(6e)(6e) A crime that is a less serious type of violation under s. 940.295 than the one charged. 939.66 AnnotationTo submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser and the jury might find the disputed fact either way. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationAttempted battery can only be an included crime as to the specific offenses listed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationA charge of possession of a pistol by a minor is not an included crime in a charge of attempted first-degree murder because it includes the element of minority that the greater crime does not. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationDisorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon, 50 Wis. 2d 73, 183 N.W.2d 84 (1971). 939.66 AnnotationWhile attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972). 939.66 AnnotationUnder sub. (1), the emphasis is on the proof, not the pleading, and the “stricken word test” stated in Eastway, 189 Wis. 56 (1926), is not incorporated in the statute. Martin v. State, 57 Wis. 2d 499, 204 N.W.2d 499 (1973). 939.66 AnnotationSection 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974). 939.66 AnnotationWhen the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as a lesser included offenses was not error. Hayzes v. State, 64 Wis. 2d 189, 218 N.W.2d 717 (1974). 939.66 AnnotationIn order to justify the submission of an instruction on a lesser degree of homicide than that with which the defendant is charged, there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State, 68 Wis. 2d 436, 228 N.W.2d 645 (1975). 939.66 AnnotationFor one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978). 939.66 AnnotationThe test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of the case. State v. Verhasselt, 83 Wis. 2d 647, 266 N.W.2d 342 (1978). 939.66 AnnotationThe trial court erred in denying the defendant’s request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981). 939.66 AnnotationWithout clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). 939.66 AnnotationWhen a defendant charged with second-degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia, 118 Wis. 2d 655, 348 N.W.2d 527 (1984). 939.66 AnnotationUnder the “elements only” test, offenses that require proof of nonconsent are not lesser included offenses of offenses for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985). 939.66 AnnotationWhen police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon the defendant’s return home, confiscating a small quantity of the same drugs, the defendant’s conviction for a lesser-included offense of possession and a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985). 939.66 AnnotationReckless use of weapons under former s. 941.20 (1) (a), 1983 stats., was not a lesser included offense of crime of endangering safety by conduct regardless of life while armed under former ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington, 134 Wis. 2d 260, 397 N.W.2d 484 (1986). 939.66 AnnotationThe court must instruct the jury on a properly requested lesser offense even though the statute of limitations bars the court from entering a conviction on the lesser offense. State v. Muentner, 138 Wis. 2d 374, 406 N.W.2d 415 (1987). 939.66 AnnotationThe court of appeals may not direct the circuit court to enter a judgment of conviction for a lesser included offense when a jury verdict of guilty on a greater offense is reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990). 939.66 AnnotationConvictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991). 939.66 AnnotationEvidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state’s prosecuting position. State v. Fleming, 181 Wis. 2d 546, 510 N.W.2d 837 (Ct. App. 1993). 939.66 AnnotationThis section does not bar multiple convictions when homicides are “equally serious.” Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment that the other did not. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
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Chs. 939-951, Criminal Code
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