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§ 939.32, Attempt, Committed as PTAC Conspiracy

State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis


¶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 groundsState 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.


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