Chapter 939

939.63   Penalties; use of a dangerous weapon.

939.632   Penalties; violent crime in a school zone.

939.635   Increased penalty for certain crimes against children committed by a child care provider.

939.645   Penalty; crimes committed against certain people or property.

SUBCHAPTER V

RIGHTS OF THE PROSECUTION

939.65   Prosecution under more than one section permitted.

939.66   Conviction of included crime permitted.

SUBCHAPTER VI

RIGHTS OF THE ACCUSED

939.70   Presumption of innocence and burden of proof.

939.71   Limitation on the number of convictions.

939.72   No conviction of both inchoate and completed crime.

939.73   Criminal penalty permitted only on conviction.

939.74   Time limitations on prosecutions.

939.75   Death or harm to an unborn child.

Ch. 939 Cross-reference Cross-reference: See definitions in s. 939.22.

Ch. 939 Note NOTE: 1987 Wis. Act 399 included changes in homicide and lesser included offenses. The sections affected had previously passed the senate as 1987 Senate Bill 191, which was prepared by the Judicial Council and contained explanatory notes. These notes have been inserted following the sections affected and are credited to SB 191 as “Bill 191-S”.

subch. I of ch. 939 SUBCHAPTER I

PRELIMINARY PROVISIONS

939.01 939.01 Name and interpretation. Chapters 939 to 951 may be referred to as the criminal code but shall not be interpreted as a unit. Crimes committed prior to July 1, 1956, are not affected by chs. 939 to 951.

939.01 History History: 1979 c. 89; 1987 a. 332 s. 64.

939.03 939.03 Jurisdiction of state over crime.

939.03(1) (1) A person is subject to prosecution and punishment under the law of this state if any of the following applies:

939.03(1)(a) (a) The person commits a crime, any of the constituent elements of which takes place in this state.

939.03(1)(b) (b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state.

939.03(1)(c) (c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime.

939.03(1)(d) (d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.

939.03(1)(e) (e) The person violates s. 943.201 or 943.203 and the victim, at the time of the violation, is an individual who resides in this state, a deceased individual who resided in this state immediately before his or her death, or an entity, as defined in s. 943.203 (1) (a), that is located in this state.

939.03(1)(f) (f) The person violates s. 943.89 and the matter or thing is deposited for delivery within this state or is received or taken within this state.

939.03(1)(g) (g) The person violates s. 943.90 and the transmission is from within this state, the transmission is received within this state, or it is reasonably foreseeable that the transmission will be accessed by a person or machine within this state.

939.03(2) (2) In this section “state” includes area within the boundaries of the state, and area over which the state exercises concurrent jurisdiction under article IX, section 1, of the constitution.

939.03 History History: 1983 a. 192; 1993 a. 486; 2003 a. 36; 2005 a. 212.

939.03 Annotation Discussing jurisdiction over a crime committed by a Menominee Indian while on the Menominee Indian Reservation. State ex rel. Pyatskowit v. Montour, 72 Wis. 2d 277, 240 N.W.2d 186 (1976).

939.03 Annotation Treaties between the federal government and Menominee tribe do not deprive the state of criminal subject matter jurisdiction over a crime committed by a Menominee outside the reservation. Sturdevant v. State, 76 Wis. 2d 247, 251 N.W.2d 50 (1977).

939.03 Annotation Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).

939.03 Annotation A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi River was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979).

939.03 Annotation The state has exclusive jurisdiction over second-offense drunk driving. A second offender may not be charged as a first offender under a local ordinance. County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982). But see City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, 15-0869.

939.03 Annotation An unlawful arrest does not deprive a court of personal jurisdiction over a defendant. State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986).

939.03 Annotation Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 Wis. 2d 206, 548 N.W.2d 134 (Ct. App. 1996), 95-2469.

939.03 Annotation Objections to subject matter jurisdiction that turn on a question of law may not be waived by a guilty plea, but objections to subject matter jurisdiction based on a factual dispute do not survive. State v. Bratrud, 204 Wis. 2d 445, 555 N.W.2d 662 (Ct. App. 1995), 94-3402.

939.03 Annotation A trial court did not lose subject matter jurisdiction over a count in a criminal complaint when an oral amendment of the count did not include one of the elements of the new offense. State v. Diehl, 205 Wis. 2d 1, 555 N.W.2d 174 (Ct. App. 1996), 95-2444.

939.03 Annotation A sentencing court is accorded incidental powers necessary to carry out its judicial functions and may modify an improper sentence, but it is not competent to enter a money judgment against the state for the recovery of improperly collected restitution under an improper sentence. State v. Minniecheske, 223 Wis. 2d 493, 590 N.W.2d 17 (Ct. App. 1998), 98-1369.

939.03 Annotation For purposes of jurisdictional analysis, the defendant father’s concealment in Canada of a child taken from the child’s mother in Wisconsin was inseparable from the consequences of the concealment in Wisconsin, thus giving a Wisconsin court jurisdiction under sub. (1) (c) to try the defendant for a violation of s. 948.31. State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.

939.03 Annotation This section relates to both personal and territorial jurisdiction. When a trial court validly acquired territorial jurisdiction over the charged crime, it could not lose jurisdiction over a lesser-included crime. State v. Randle, 2002 WI App 116, 252 Wis. 2d 743, 647 N.W.2d 324, 01-1448.

939.03 Annotation If there is no serious evidentiary dispute that the trial court has territorial jurisdiction, a special instruction on territorial jurisdiction need not be given to the jury. A person may be prosecuted for doing an act outside this state that has a criminally proscribed consequence within the state. State v. Brown, 2003 WI App 34, 260 Wis. 2d 125, 659 N.W.2d 110, 02-1000.

939.03 Annotation The constituent elements of an offense under sub. (1) (a) are those elements of the criminal offense that the state is required to prove beyond a reasonable doubt in the prosecution of the offense. A constituent element of a criminal offense may be either the wrongful deed that comprises the physical component or the state of mind that the prosecution must prove that a defendant had. For first-degree homicide, sub. (1) (a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. State v. Anderson, 2005 WI 54, 280 Wis. 2d 104, 695 N.W.2d 731, 03-3478.

939.03 Annotation Age limits on criminal, juvenile delinquency, and juvenile in need of protection or services (JIPS) matters both define and restrict how a circuit court may address the specific case before the court, and not whether a circuit court can hear criminal, juvenile delinquency, or JIPS matters generally. Therefore, age limits are an issue of statutory competency, rather than subject matter jurisdiction. Unlike challenges to subject matter jurisdiction, challenges to statutory competency may be forfeited or waived. State v. Sanders, 2018 WI 51, 381 Wis. 2d 522, 912 N.W.2d 16, 15-2328.

939.03 Annotation A defendant’s age at the time the defendant is charged, not the defendant’s age at the time the defendant commits the underlying conduct, determines whether the circuit court has statutory competency to hear the case as a criminal, juvenile delinquency, or juvenile in need of protection or services matter. Consequently, the circuit court in this case possessed statutory competency to hear the defendant’s case as a criminal matter because the defendant was an adult at the time he was charged for conduct he committed before his tenth birthday. State v. Sanders, 2018 WI 51, 381 Wis. 2d 522, 912 N.W.2d 16, 15-2328.

939.03 Annotation In this case, the circuit court possessed territorial jurisdiction under sub. (1) (c) because the defendant’s failure to update his sex offender registration had a criminal consequence in this state pursuant to s. 301.45 (6). The general criminal-law rule is that a crime involving a failure to act is committed at the place where the act is required to be performed. In this case, the defendant’s failure to update his registration with Wisconsin authorities quite obviously had a consequence that is prohibited by this state’s criminal law, thereby making territorial jurisdiction appropriate under sub. (1) (c). That the defendant’s failure arises from his moving within another state—rather than within, to, or from Wisconsin—does nothing to change this obvious consequence. State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209.

939.05 939.05 Parties to crime.

939.05(1) (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

939.05(2) (2) A person is concerned in the commission of the crime if the person:

939.05(2)(a) (a) Directly commits the crime; or

939.05(2)(b) (b) Intentionally aids and abets the commission of it; or

939.05(2)(c) (c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.

939.05 History History: 1993 a. 486.

939.05 Annotation It is desirable, but not mandatory, that an information refer to this section if the district attorney knows in advance that a conviction can only be based on participation and the court can instruct and the defendant can be convicted on the basis of this section in the absence of a showing of adverse effect on the defendant. Bethards v. State, 45 Wis. 2d 606, 173 N.W.2d 634 (1970).

939.05 Annotation It is not error that an information charging a crime does not also charge the defendant with being a party to a crime. Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971).

939.05 Annotation Under sub. (2) (c), a conspirator is one who is concerned with a crime prior to its actual commission. State v. Haugen, 52 Wis. 2d 791, 191 N.W.2d 12 (1971).

939.05 Annotation A complaint charging the defendant as a party to the crime of theft that alleged that an unidentified man stole property and gave it to the defendant who passed it on was insufficient. There must be an allegation that the defendant knew of the commission of the crime. State v. Haugen, 52 Wis. 2d 791, 191 N.W.2d 12 (1971).

939.05 Annotation An information charging the defendant with being a party to a crime need not set forth the particular subsection relied upon. A defendant can be convicted of first-degree murder under this statute even though the defendant claimed only intending to rob and that an accomplice did the shooting. State v. Cydzik, 60 Wis. 2d 683, 211 N.W.2d 421 (1973).

939.05 Annotation The state need not elect as to which of the elements of the charge it is relying on. Hardison v. State, 61 Wis. 2d 262, 212 N.W.2d 103 (1973).

939.05 Annotation Conduct undertaken to intentionally aid another in the commission of a crime that yields such assistance constitutes aiding and abetting the crime and whatever it entails as a natural consequence. State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977).

939.05 Annotation Defendants may be found guilty under sub. (2) if, between them, they perform all of the necessary elements of the crime with awareness of what the others are doing; each defendant need not be present at the scene of the crime. Roehl v. State, 77 Wis. 2d 398, 253 N.W.2d 210 (1977).

939.05 Annotation There are two party-to-a-crime theories: aiding and abetting under sub. (2) (b) and conspiracy under sub. (2) (c). State v. Charbarneau, 82 Wis. 2d 644, 264 N.W.2d 227 (1978).

939.05 Annotation Withdrawal from a conspiracy under sub. (2) (c) must be timely. Zelenka v. State, 83 Wis. 2d 601, 266 N.W.2d 279 (1978).

939.05 Annotation This section applies to all crimes unless legislative intent clearly indicates otherwise. State v. Tronca, 84 Wis. 2d 68, 267 N.W.2d 216 (1978).

939.05 Annotation Proof of a “stake in the venture” is not needed to convict under sub. (2) (b). Krueger v. State, 84 Wis. 2d 272, 267 N.W.2d 602 (1978).

939.05 Annotation Distinguishing multiple conspiracies and single conspiracies. Bergeron v. State, 85 Wis. 2d 595, 271 N.W.2d 386 (1978).

939.05 Annotation A conspiracy commences with an agreement between two or more persons to direct their conduct toward the realization of a criminal objective, and each member of the conspiracy must individually and consciously intend the realization of the particular criminal venture. Each conspirator must have an individual stake in the conspiracy. Bergeron v. State, 85 Wis. 2d 595, 271 N.W.2d 386 (1978).

939.05 Annotation A jury need not unanimously agree whether the defendant: 1) directly committed the crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979).

939.05 Annotation An aider and abettor who withdraws from a conspiracy does not remove himself or herself from aiding and abetting. May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980).

939.05 Annotation A party to a crime is guilty of that crime whether or not that party intended the crime or had the intent of its perpetrator. State v. Stanton, 106 Wis. 2d 172, 316 N.W.2d 134 (Ct. App. 1982).

939.05 Annotation The elements of aiding and abetting are undertaking conduct that will aid another in the execution of the crime and a conscious desire that the conduct will yield that aid. State v. Hecht, 116 Wis. 2d 605, 342 N.W.2d 721 (1984).

939.05 Annotation The jury need not unanimously agree as to in which of the alternative ways under sub. (2) a defendant has committed the offense under the party to the crime theory. While there may be distinctions between aiding abetting and conspiracy, the distinctions are often blurred. State v. Hecht, 116 Wis. 2d 605, 342 N.W.2d 721 (1984).

939.05 Annotation Testimony concerning a party to the crime defendant’s whereabouts during planning sessions for the crime was not an alibi and did not require a notice of alibi under s. 971.23 (8). State v. Horenberger, 119 Wis. 2d 237, 349 N.W.2d 692 (1984).

939.05 Annotation Depending on the facts of the case, armed robbery can be a natural and probable consequence of a robbery. In that case, an aider and abettor need not have had actual knowledge that the principals would be armed. State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984).

939.05 Annotation Sub. (2) (c) may be violated when the defendant solicits a second person to procure a third person to commit a crime. State v. Yee, 160 Wis. 2d 15, 465 N.W.2d 260 (Ct. App. 1990).

939.05 Annotation Individual officers are personally responsible for criminal acts committed in the name of a corporation. State v. Kuhn, 178 Wis. 2d 428, 504 N.W.2d 405 (Ct. App. 1993).

939.05 Annotation A defendant may be guilty of felony murder, party to a crime, if the defendant participates with an accomplice in a felony listed in s. 940.03 and the accomplice kills another. There is no requirement that the defendant have an intent to kill or directly cause the death. State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994). See also State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994); State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994).

939.05 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 sub. (2) (c). State v. Jackson, 2005 WI App 104, 281 Wis. 2d 137, 701 N.W.2d 42, 04-1603.

939.05 Annotation The unanimity requirement was satisfied when the jury unanimously found that the accused participated in the crime. Lampkins v. Gagnon, 710 F.2d 374 (1983).

939.05 Annotation This section does not shift the burden of proof. The prosecution need not specify which paragraph of sub. (2) it intends to proceed under. Madden v. Israel, 478 F. Supp. 1234 (1979).

939.05 Annotation Liability for Coconspirator’s Crimes in the Wisconsin Party to a Crime Statute. Schuessler. 66 MLR 344 (1983).

939.05 Annotation Application of Gipson’s Unanimous Verdict Rationale to the Wisconsin Party to a Crime Statute. Baumgarth. 1980 WLR 597.

939.05 Annotation Wisconsin’s Party to a Crime Statute: The Mens Rea Element Under the Aiding and Abetting Subsection, and the Aiding and Abetting-Choate Conspiracy Distinction. Ostos-Irwin. 1984 WLR 769.

939.10 939.10 Common law crimes abolished; common law rules preserved. Common law crimes are abolished. The common law rules of criminal law not in conflict with chs. 939 to 951 are preserved.