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§ 948.07, Enticement — Elements — Proof of Victim’s Age

State v. Timothy P. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359
For Koenck: Lew Wasserman

Issue: “(W)hether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attained the age of eighteen [because the ‘victim’ is fictitious].” ¶7.

Holding:

¶28 Within the contemplation of WIS. STAT. § 948.07, an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. Huebner v. State, 33 Wis. 2d 505, 520, 147 N.W.2d 646 (1967). We conclude that the fictitiousness of the girls constituted an extraneous factor beyond Koenck’s control that prevented him from successfully enticing a child for the express purpose of sexual intercourse or contact. Id. at 520-21. Koenck did everything necessary to insure the commission of the crime intended, and his conduct is not excused because of the fortuitous circumstance rendering it impossible to effectuate the intended result. State v. Damms, 9 Wis. 2d 183, 190-91, 100 N.W.2d 592 (1960).

The court rejects Koenck’s argument that attempt principles are inapplicable:

Reading §§ 948.07 and 939.32(1)(d) together, it is clear that the legislature, by enclosing the attempted and completed act in the same statute, did not intend to eliminate the crime of attempted child enticement, but determined that the attempted act of child enticement was as egregious as the completed act and thus each warranted the same penalty. Contrary to Koenck’s assertions, merging the completed and the attempted crime into one statute does not render the principles of attempt inapplicable. The reference in § 939.32(1)(d) to § 948.07 indicates that the principles of attempt apply to § 948.07 violations.

For discussion of Internet “sting” cases under federal enticement statutes, see U.S. v. Tykarsky, 446 F. 3d 458 (3rd Cir 2006) (upshot: no requirement that there be an actual, minor “victim”; lengthy discussion of “law of impossible attempts” and distinction between factual and legal impossibility).

 

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