939.23 NoteJudicial 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 AnnotationA 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 AnnotationInstructions 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 AnnotationThe 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 AnnotationThe 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). 939.24939.24 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 NoteJudicial 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 NoteSub. (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 AnnotationThere 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). 939.24 AnnotationFelony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrated that the defendant in this case forced his way into a building and started shooting with two guns, which was indicative of an intent to recklessly endanger the safety of those inside—a felony. Therefore, the defendant was convicted of a valid crime. State v. Mays, 2022 WI App 24, 402 Wis. 2d 162, 975 N.W.2d 649, 21-0765. 939.24 AnnotationWith respect to first-degree reckless injury under s. 940.23 (1) (a), a successful assertion of self-defense under s. 939.48 (1) negates an element of the crime, rendering self-defense a negative defense rather than an affirmative defense. Because, under sub. (1), the “criminally reckless conduct” element of reckless injury requires proof that the defendant has created an “unreasonable” and substantial risk of death or great bodily harm to another person, proof that the defendant reasonably believed that the other person posed a risk of death or great bodily harm to himself and that the use of force was necessary to eliminate that risk will necessarily preclude a finding that the defendant’s use of force was unreasonable and criminally reckless. Once a defendant establishes the existence of a statutory affirmative defense, Wisconsin law imposes on the state the burden of disproving the defense beyond a reasonable doubt. Brown v. Eplett, 48 F.4th 543 (2022). 939.24 AnnotationDue Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.
939.25939.25 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 NoteJudicial 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 AnnotationThe 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 AnnotationProsecuting 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 AnnotationSection 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 AnnotationWhen “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). 939.31939.31 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 AnnotationA 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 AnnotationThere 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 AnnotationThe 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 AnnotationA 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 AnnotationUnder 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 AnnotationFor 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)(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 AnnotationThere 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 AnnotationAttempted 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 AnnotationThe 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 AnnotationThe 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 AnnotationThe 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 AnnotationThe 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 AnnotationTo 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 AnnotationSubs. (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 AnnotationThe 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 AnnotationWhen 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 AnnotationThe 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).
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Chs. 939-951, Criminal Code
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