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Territorial Jurisdiction Defense, § 939.03 — First-Degree Homicide — Intent as “Constituent Element [That] Takes Place”

State v. Derek Anderson, 2005 WI 54, on certification
Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element of first-degree intentional homicide, may be said to take place——that is, “exist,” “occur,” or “be present”——in Wisconsin if the defendant commits an act in this state that manifests or exhibits an intent to kill…….

¶51 Therefore, we conclude that the phrase “constituent elements” in § 939.03(1)(a) refers to the elements of the underlying offense that the State must prove beyond a reasonable doubt in order to secure a conviction. A constituent element of a criminal offense may be either an actus reus element or a mens rea element. Intent to kill is a constituent element of first-degree intentional homicide in Wisconsin. Thus, intent to kill is a constituent element for purposes of § 939.03(1)(a). Further, we conclude that the State offers sufficient proof that a mens rea element of first-degree intentional homicide “takes place” in Wisconsin for purposes of § 939.03(1)(a), if there is proof that the defendant committed an act in this state that manifests an intent to kill.

In one sense the court has simply rewritten the statute to make it read the desired way. Section 939.03(1)(a) premises jurisdiction on an element that “takes place” in Wisconsin. Does intent “take place”? Not really, which is why the court says the State must prove “an act in this state that manifests an intent to kill.” The statute, though says no such thing — hence opening the court to an accusation of revisionism — but this gloss nonetheless now becomes a settled part of the statutory text. The court’s embellishment of the intent element probably won’t be too nettlesome in most cases, simply because in the ordinary case there is indeed a congruence of intent and the death-causing act itself. But it certainly presents an opportunity for mischief-making in the odd case. If nothing else, there should be an entitlement to a manifest-act instruction, so that the jury will have to decide its existence beyond reasonable doubt. And, if the court’s rhetoric is to (as indeed it must) be taken at face value, then manifest ought to mean just that: obvious, clear, plain. So taken, the gloss isn’t necessarily pernicious.

 

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