Chapter 939

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.

939.32 939.32 Attempt.

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)(cr) (cr) Whoever attempts to commit a crime under s. 948.055 (1) is subject to the penalty for the completed act, as provided in s. 948.055 (2).

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(1)(g) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).

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) (b)

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(1g)(b)2. 2. If either s. 939.62 (1) or 961.48 is being applied, the maximum term of imprisonment is determined by the following method:

939.32(1g)(b)2.a. a. Multiplying by one-half 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(1g)(b)2.b. b. Applying s. 939.62 (1) or 961.48 to the product obtained under subd. 2. a.

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)(a)2.a. a. Multiplying by one-half the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statutes listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.

939.32(1m)(a)2.b. b. Applying s. 939.62 (1) or 961.48 to the product obtained under subd. 2. a.

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 History History: 1977 c. 173; 1981 c. 118; 1983 a. 438; 1987 a. 332; 1989 a. 336; 1991 a. 17; 1993 a. 98, 486; 1997 a. 295; 2001 a. 91, 109; 2003 a. 36, 321; 2005 a. 14, 212; 2009 a. 180; 2011 a. 284; 2013 a. 165 s. 115.

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.

subch. III of ch. 939 SUBCHAPTER III

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).

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), 98-2655.

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), 98-2655.

939.42 Annotation Criminal Law: Alcoholism as a Defense. Herald. 53 MLR 445 (1970).

939.42 Annotation Due Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.

939.43 939.43 Mistake.

939.43(1) (1) An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime.

939.43(2) (2) A mistake as to the age of a minor or as to 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 is not a defense.

939.43 Annotation The prosecution of an individual who relied on a governmental official’s statutorily required legal opinion would impose an unconscionable rigidity in the law. State v. Davis, 63 Wis. 2d 75, 216 N.W.2d 31 (1974).

939.43 Annotation Mistake is not a defense to criminal negligence. A defendant’s subjective state of mind is not relevant to determining criminal negligence. State v. Lindvig, 205 Wis. 2d 100, 555 N.W.2d 197 (Ct. App. 1996), 96-0235.

939.44 939.44 Adequate provocation.

939.44(1) (1) In this section:

939.44(1)(a) (a) “Adequate” means sufficient to cause complete lack of self-control in an ordinarily constituted person.

939.44(1)(b) (b) “Provocation” means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.

939.44(2) (2) Adequate provocation is an affirmative defense only to first-degree intentional homicide and mitigates that offense to 2nd-degree intentional homicide.

939.44 History History: 1987 a. 399.

939.44 Note Judicial Council Note, 1988: Sub. (1) codifies Wisconsin decisions defining “heat of passion” under prior s. 940.05. Ryan v. State, 115 Wis. 488 (1902); Johnson v. State, 129 Wis. 146 (1906); Carlone v. State, 150 Wis. 38 (1912); Zenou v. State, 4 Wis. 2d 655 (1958); State v. Bond, 41 Wis. 2d 219 (1969); State v. Williford, 103 Wis. 2d 98 (1981).

939.44 Note Traditionally, provocation had 2 essential requirements. State v. Williford, supra., at 113. The first reflected in sub. (1) (b), is subjective. The defendant must have acted in response to provocation. This necessitates an assessment of the particular defendant’s state of mind at the time of the killing. The 2nd requirement, reflected in sub. (1) (a), is objective. Only provocation sufficient to cause a reasonable person to lose self-control completely is legally adequate to mitigate the severity of the offense.

939.44 Note Sub. (2) clarifies that adequate provocation is an affirmative defense to first-degree intentional homicide. Although adequate provocation does not negate the intent to kill such that the burden of persuasion rests on the state by constitutional principles (Mullaney v. Wilbur, 421 U.S. 684, (1975), Wisconsin has chosen to place the burden of disproving this defensive matter on the prosecution beyond a reasonable doubt. State v. Lee, 108 Wis. 2d 1 (1982). Since adequate provocation is not an affirmative defense to 2nd-degree intentional homicide, its effect is to mitigate the severity of an intentional homicide from first to 2nd degree. [Bill 191-S]

939.44 Annotation Adequate provocation includes both subjective and objective components. As to the subjective component, the defendant must actually believe the provocation occurred, and the lack of self-control must be caused by the provocation. As to the objective component, the provocation must be such that would cause an ordinary, reasonable person to lack self-control completely, and the defendant’s belief that the provocative acts occurred must be reasonable. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903.

939.44 Annotation To place provocation in issue, there need be only “some” evidence supporting the defense. The defendant’s proffered evidence of provocation must be examined as a whole to determine whether the “some evidence” threshold is satisfied. It is an all-or-nothing determination as to whether the jury hears any evidence of the affirmative defense. The adequate provocation inquiry is fact-driven. If the victim’s prior acts could contribute to a reasonable person’s loss of self-control at the time of the crime, the acts are relevant to the objective component of the defense. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903.

939.45 939.45 Privilege. The fact that the actor’s conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:

939.45(1) (1) When the actor’s conduct occurs under circumstances of coercion or necessity so as to be privileged under s. 939.46 or 939.47; or

939.45(2) (2) When the actor’s conduct is in defense of persons or property under any of the circumstances described in s. 939.48 or 939.49; or