INCHOATE OFFENSES
Updated 7/25/07

Conspiracy -- § 939.31, Elements – Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:

¶18   Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x). [8] Section 939.31 provides:

…. 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 ….

Thus, there are three elements: (1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy. Wis JI—Criminal 570 (2001); State v. West, 214 Wis. 2d 468, 476, 571 N.W.2d 196 (Ct. App. 1997).

Conspiracy -- § 939.31 – Sufficiency of Evidence – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:

¶36   Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here, of an ongoing business that had the predominant purpose of selling a product for an illegal use. …

¶37   We do not agree with Routon that the evidence here shows “[a] single, casual transaction.” Although there was only one sale to Agent Smith, the reasonable inference the court drew from the evidence is that Routon marketed and sold psilocybe spores and grow kits to a number of other purchasers as part of his ongoing business. This is important because evidence of an ongoing business may, as here, provide evidence of the seller’s knowledge of the illegal use of the product sold and an intent to further, promote, and cooperate in that illegal use.

Attempt, Committed as PTAC Conspiracy
State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis
Issue/Holding:
¶7 Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, “conspiracy to attempt” is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez, 116 Cal. Rptr. 2d 634 (Cal. Ct. App. 2002). These cases are inapposite.

...

¶10 Jackson asserts that these cases show that attempt cannot be the object of a “conspiracy” because, under Wisconsin law, conspiracy requires specific “intent that a crime be committed,” see WIS. STAT. § 939.31, while attempt, by definition, is an incomplete crime, see WIS. STAT. § 939.32(3). Jackson, however, was not charged with “conspiracy to attempt” armed robbery under § 939.31. Rather, he was charged with attempted armed robbery, as a party to the crime, under WIS. STAT. § 939.05. As explained in State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), overruled on other grounds, State v. Stevens, 26 Wis. 2d 451, 132 N.W.2d 502 (1965), there is a distinction between conspiracy as a substantive inchoate crime under § 939.31, and conspiracy as a theory of prosecution for a substantive crime under § 939.05(2)(c), and this distinction is significant here.

…

¶12 As we have seen, Jackson was charged with and convicted of the substantive crime of attempted armed robbery as a party to that crime. That “conspiracy” was the party-to-a-crime avenue by which his criminal liability attached, see Holland v. State, 91 Wis. 2d 134, 143, 280 N.W.2d 288, 292–293 (1979) (party-to-a-crime statute establishes “alternative means or ways” that a crime can be committed), does not make him guilty of a non-existent crime. Armed robbery is a crime. Attempted armed robbery is a crime. Under the evidence looked at in a light most favorable to the jury’s verdict, see Nutley, 24 Wis. 2d at 547–548, 129 N.W.2d at 163–164, he set into motion an armed-robbery scenario that culminated in the crime of attempted armed robbery because of the intervention of things beyond his and his accomplices’ control. He was thus guilty of the substantive crime of attempted armed robbery as a principal by virtue of WIS. STAT. § 939.05(2)(c). See Nutley, 24 Wis. 2d at 561, 129 N.W.2d at 170. The trial court did not err in instructing the jury, and did not violate Jackson’s right to due process.

Conspiracy, § 939.31 – Unit of Prosecution (Multiple Counts for Multiple Acts)
State v. Edward Leon Jackson, 2004 WI App 190, PFR filed 10/15/04
For Jackson: Meredith J. Ross, LAIP, UW Law School
Issue/Holding:
¶2 In 1996, Jackson admitted to his role in a plan to fire bomb a Milwaukee police officer’s home. Jackson and two other men conspired to fire bomb the house, enabling two others to shoot people fleeing from the building. A jury found Jackson guilty in 1997 of two counts of conspiracy and one count of possession of a firebomb. Though Jackson was part of one conspiracy, he conspired to participate in two acts, arson and intentional homicide, and was charged with two counts of conspiracy under WIS. STAT. § 939.31.

¶6 Jackson, citing Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99 (1942), contends that a conspiracy statute punishes the criminal agreement or combination with another to commit a crime, not the criminal goals of the agreement. … Braverman is inapplicable here because the underlying conspiracy statute differs from the federal conspiracy statute. Unlike the federal conspiracy statute, WIS. STAT. § 939.31 permits the charging of multiple offenses.

…

¶8 … There are three elements to § 939.31 …. These elements incorporate each criminal offense that is the criminal object of the conspiracy. This means that when a conspiracy has as its object the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. Thus, § 939.31 expresses the Wisconsin Legislature’s intent to permit multiple punishments.

¶9 Jackson conspired to commit two crimes, arson and murder. Accordingly, under WIS. STAT. § 939.31, he may be charged with two counts of conspiracy, one incorporating the crime of arson, another incorporating murder. Each charge requires proof of facts that the other does not; they are different in fact and in law. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Even though both offenses may have arisen from the same agreement, “[i]t is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Albernaz v. United States, 450 U.S. 333, 344, n.3, 101 S. Ct. 1137 (1981).

Our conspiracy statute is addressed to “intent that a crime be committed.” The federal conspiracy statute, 18 USC § 371, is addressed to conspiring “to commit any offense.” Braverman construed the statute to mean that, “(w)hether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.” You might think that the federal and Wisconsin statutes are similarly worded, and Braverman therefore very pertinent – but you would be wrong. The court of appeals distinguishes the federal statute on the basis that it doesn’t incorporate the underlying criminal objective, but instead provides a static penalty of five years for conspiring to commit “any” offense; contrastingly, § 939.31 ties the penalty for conspiracy to the underlying crime. Maybe. But still: “The primary definition of the word ‘any’ is ‘one or some indiscriminately of whatever kind’ or ‘one or another.’” U.S. v. Misc. Firearms, 376 F.3d 709 (7th Cir. 2004). And, under Wisconsin law, “a” may be either singular or plural, § 990.001(1). In other words, the use of “any” or “a” in the statutes doesn’t really tell you much.
§ 948.02(2), Attempted Sexual Assault (Intercourse) – Crime Known to Law Despite Lack of “Formal” Intent Element
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue: Whether attempted sexual assault of a child (by intercourse), § 948.02(2), is a crime known to law, in that the offense lacks an intent element and any crime of intent, § 939.32, requires specific intent for the completed act.
Holding: Sexual contact explicitly requires “intentional touching,” and therefore supports a charge of attempted assault by contact, State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284. But “sexual intercourse,” unlike “contact,” is not defined with “a formal element of intent,” § 948.01(6). And although attempt requires that the completed offense contain the element of intent, State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998), that requirement is satisfied for attempted assault by intercourse because intercourse necessarily involves contact. ¶¶18-21.
A knotty semantical problem, to be sure, but there’s more to it than the court suggests. It’s clear that you can’t be charged with attempt when the completed crime lacks the element of specific intent. And it’s equally clear that assault by intercourse does not require intent. Indeed, the court of appeals previously has gone so far as to say that the legislature “intentionally omitted any intent requirement” from the offense of assault by intercourse. State v. Neumann, 179 Wis.2d 687, 709, 508 N.W.2d 54 (Ct. App. 1993). But that was different: Neumann wanted to raise an intoxication defense, and the court was certain that the absence of an intent element was meant to prevent any worm-holes through which the likes of Neumann could slither to freedom: “the legislature most likely concluded that a defendant's intent should not be an element of the crime because to allow for a defendant to claim the defense of intoxication, and other defenses based upon lack of intent, would be contrary to the goals of enforcement and protection of bodily security.” 179 Wis.2d at 710. But this is a different day, and with Brienzo seeking refuge in strict liability the court deems the elemental structure a bit more permeable after all; now, absence of intent is not deemed a matter of considered legislative policy but, rather, a matter merely of form and not substance. This is not to gainsay the court’s logic: there is something to be said for the idea that you can’t have intercourse without intentional touching. But there is a history, too, one which the court’s logic simply ignores – assault by intercourse is distinct from contact: the latter, specific intent; the former, strict liability.
§ 948.02(2), Attempted Sexual Assault (Intercourse) – Crime Initiated Over Internet
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement).
Attempt -- In General
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue/Holding:
¶37. The crime of attempt is complete when the intent to commit the underlying crime is coupled with sufficient acts to demonstrate the improbability of free will desistance; the actual intervention of an extraneous factor is not a "third element" of the crime of attempt, although it is often part of the proof. See id. at 39-42; see also, Hamiel v. State, 92 Wis. 2d 656, 662-68, 285 N.W.2d 639 (1979). There is no statutory defense of voluntary abandonment once an attempt is completed, and this court has declined to create such a defense at common law. Stewart, 143 Wis. 2d at 45-46.
Attempted Child Enticement, §§ 939.32, 948.07(1) -- Internet Sting Operation
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether attempted child enticement is a prosecutable offense, where the "child victim" was in fact a government agent posing as a child as part of a government sting operation.
Holding: That the "victim" was fictitious is the extraneous factor intervening to make the crime attempted rather than completed enticement. State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, ratified. ¶¶22-28. Nor is this an impermissible prosecution for attempt to commit a strict liability offense (proscribed in principle by State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998)). Rather, the enticement contains specific, enumerated, prohibited intents; that the defendant doesn't have to have knowledge of the child's minority doesn't make the offense strict liability. ¶¶29-30. Finally, the fact the crime couldn't have been completed isn't meaningful, as "legal impossibility" isn't a defense to attempt. State v. Kordas, 191 Wis. 2d 124, 528 N.W.2d 483 (Ct. App. 1995) held controlling. ¶¶31-33.
Robins followed, State v. James F. Brienzo, 2003 WI App 203, ¶2.
Attempted Child Enticement, §§ 939.32, 948.07(1) -- Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online "victim" is thought by the defendant to be a child, are controlling. ¶¶8-9.
Attempted Second-degree Sexual Assault, §§ 939.32, 948.02(2) -- Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: The rationale of State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online "victim" is thought by the defendant to be a child, is equally applicable to a charge of second-degree sexual assault of a child. Moreover, such a charge doesn't run afoul of the rule that an a strict liability offense can't support a charge of attempt. ¶¶10-14. (The court implies vaguely, but doesn't explicitly say that this is so because sexual contact (a form of sexual assault) does contain an intent element. ¶¶11-13. Nor does the court say that attempt must therefore be charged as contact, rather than intercourse, though that might be an implication.)
Attempt -- intended victim's refusal to submit.
State v. Gabriel DeRango, 229 Wis.2d 1, 599 N.W.2d 27 (Ct. App. 1999), affirmed on other grounds, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 83.
For DeRango: Robert G. LeBell.
Holding: The evidence was sufficient, largely because the complainant's refusal to go along with DeRango's scheme constituted intervention of another person, so as to satisfy the attempt statute.
Attempt -- Conspiracy -- Multiplicity
State v. Melvin L. Moffett and Jerrell I. Denson, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, affirming State v. Moffett/Denson2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733
For Moffett: Patrick J. Stangl; for Denson: Joseph L. Sommers
Issue: "¶2 The parties present the following question to this court: May the State charge the defendants with two crimes, that is, with being parties to the crime of attempted first-degree intentional homicide and with the crime of conspiracy to commit first-degree intentional homicide when both crimes had only one and the same intended victim? Stating the question more generally, may an accused be charged with both being a party to an attempt to commit a crime and a conspiracy to commit the same crime?"
Holding: "The clear language of Wis. Stat. § 939.72(2) refers to convictions, not charges. Nothing in the legislative history of Wis. Stat. § 939.72(2) suggests otherwise. We agree with the State that by limiting Wis. Stat. § 939.72(2) to convictions and by enacting Wis. Stat. § 939.65 allowing the State to bring multiple charges, the legislature has clearly expressed its intent to allow the State to proceed with both charges in the present case." ¶18. (The court cautions, though, that the result is limited to this, a pleading, context: "Quite simply, Wis. Stat. § 939.72 governs only convictions and does not bar the State from bringing and proceeding with charges set forth in multiple statutes. The issue under Wis. Stat. § 939.72(2) of whether defendants can be convicted of the crime of conspiracy to commit intentional homicide and of being parties to the crime of attempted first-degree intentional homicide is not before us at this juncture of the case." ¶12.)
Attempted Fraudulent Acquistion of Controlled Substance, § 961.43(1) -- Sufficiency of Evidence
State v. Linda M. Henthorn, 218 Wis. 2d 526, 581 N.W.2d 544
For Henthorn: Michael Yovovich, SPD, Madison Appellate
Issue/Holding1:
In Hamiel v. State, 92 Wis.2d 656, 666, 285 N.W.2d 639, 646 (1979), the supreme court outlined the two requirements for proof of an attempted crime:
[I]t must ... be shown that: (1) the defendant's actions in furtherance of the crime clearly demonstrate, under the circumstances that he [or she] had the requisite intent to commit the crime ... ; and (2) that having formed such intent the defendant had taken sufficient steps in furtherance of the crime so that it was improbable that he [or she] would have voluntarily terminated his [or her] participation in the commission of the crime.
Issue/Holding2:
Viewing the facts most favorable to the prosecution requires us to assume that, despite her denial, Henthorn in fact altered the prescription, changing the refill number from "1" to "11." She then presented the prescription to the pharmacist but took no further action. ...

...

As a matter of law, Henthorn's conduct in this case was insufficient to show that she would "probably not desist from the criminal course." Id. at 41, 420 N.W.2d at 49. When she presented the prescription to the pharmacist she was, as we have noted, obtaining medicine that she was legally entitled to receive; Henthorn was seeking only the first of the two vials of Tylenol 3 her physician had prescribed. She would have to return to the pharmacy, and one more time after that, in order to "acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge" in violation of § 961.43(1)(a), Stats.

...

Under the instructions given to them, the jurors would have to find that Henthorn's actions up to and on the day in question demonstrated unequivocally-that is, that "no other inference or conclusion can reasonably and fairly be drawn from ... [her] acts"-that she intended to fraudulently acquire codeine. ...

We conclude that, as a matter of law, no reasonable jury could find on this record that the State had proved the essential elements of the offense of attempted fraudulent acquisition of a controlled substance. We therefore reverse Henthorn's conviction.