939.23 Annotation A 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, A 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 Annotation Instructions 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, Instructions 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 Annotation The 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, The 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 Annotation The 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, The 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).

939.24(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. 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. 940.29, Except as provided in ss. 940.285 940.295 , 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 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, 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(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. 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. 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(3) (3) This section does not apply to s. This section does not apply to s. 948.21

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, 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. 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. 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 s. 939.30, rather than under s. 944.30 for prostitution, did not deny equal protection. Sears v. State, Prosecuting for solicitation under s. 939.30, 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, 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, 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).

939.30 Annotation The crime of solicitation does not require that the actor know with certainty whether an injury will in fact result from the solicitee's conduct. State v. Kloss, 386 Wis. 2d 314, 925 N.W.2d 563, 18-0651. The crime of solicitation does not require that the actor know with certainty whether an injury will in fact result from the solicitee's conduct. State v. Kloss, 2019 WI App 13

939.31 939.31 Conspiracy. Except as provided in ss. 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, 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 When the object of a conspiracy is the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. State v. Jackson, 276 Wis. 2d 697, 688 N.W.2d 688, 03-2066. When the object of a conspiracy is the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. State v. Jackson, 2004 WI App 190

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

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, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557. 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

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 he or she 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, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557. 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 he or she 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

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, 319 Wis. 2d 258, 769 N.W.2d 154, 08-2664. 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

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, 334 Wis. 2d 159, 800 N.W.2d 512, 10-0563. 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

939.32(1) (1) Generally. Whoever attempts to commit a felony or a crime specified in s. 940.195, Whoever attempts to commit a felony or a crime specified in s. 940.19 943.20 , 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. The maximum fine is one-half of the maximum fine for the completed crime.

939.32(1g)(b)2. 2. If either s. 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. 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(1m) (1m) Bifurcated sentences. If the court imposes a bifurcated sentence under s. 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)2. 2. Subject to the minimum term of extended supervision required under s. 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. 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. 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. 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. 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. 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. 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. 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. 943.82 (1), Whoever attempts to commit a crime under s. 943.81 943.83 , 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. 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, 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 1st-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, Attempted 1st-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, 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, 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, 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, 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 his or her own free will. State v. Stewart, 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 his or her 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, 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, 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, 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, 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, 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, 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, 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