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SCOW to address whether solicitation of reckless conduct is a crime

State v. Kelly James Kloss, 2018AP651-CR, petition and cross petition for review of a published court of appeals decision, both granted 6/11/19; case activity (including briefs)


Is solicitation of first degree reckless injury a crime under Wisconsin law?

Is solicitation of first degree recklessly endangering safety a lesser included offense of first degree reckless injury, making conviction for both offenses multiplicitous in this case?

This case will address solicitation under § 939.30, an inchoate crime that doesn’t get charged very often and so hasn’t been the subject of much litigation.

As described in our post on the court of appeals decision, Kloss was charged with soliciting a raft of offenses based on a stream of phone calls he made to his wife while he was in jail urging her to shoot any cops who came to her home. Kloss was convicted only of soliciting two crimes: first degree reckless injury and first degree recklessly endangering safety.

Kloss’s threshold argument is that Wisconsin law doesn’t recognize solicitation of an offense with a recklessness mens rea that requires a specified injury (in his case, great bodily harm). This is so, he asserts, because solicitation requires an intent that the elements of the offense be committed, and a defendant can’t intend that reckless conduct produce the specified injury because whether the reckless conduct ultimately does produce that injury is a matter of fortuity.

There’s a dearth of case law on solicitation of non-intentional crimes, but relying on Wayne LaFave, et al., Substantive Criminal Law § 11.1(c) (3d ed. 2017), the court of appeals held that as long as the evidence shows the solicitor intends the result, it doesn’t matter that it may be uncertain whether the conduct he solicits to effectuate will end up causing the required result. We’ll see if the supreme court agrees. Kloss’s petition also renews his claim about the insufficiency of the evidence to show he “unequivocally” intended his solicitee to cause great bodily harm, so the court will also have the chance to address what “unequivocally” means as used in the solicitation statute.

The state cross-petitioned to challenge the court of appeals conclusion that Kloss’s convictions were multiplicitous because solicitation of first degree reckless endangering is a lesser-included offense of solicitation of first degree reckless injury. The state raises two issues. First, there’s no case law on assessing lesser-included offenses under the solicitation statute, which doesn’t require the solicited felony to be completed. So it’s not clear whether the lesser-included analysis proceeds as if the solicited felony was completed (in which case the court of appeals is right), or whether the elements of the intended felonies are effectively incorporated into the solicitation statute, in which case it is possible the solicitor intended to solicit two different offenses, neither of which occurred. Second, and relatedly, the state complains the court of appeals’ analysis addressed only whether Kloss’s two convictions were identical in law and didn’t adequately assess whether they were  also identical in fact.

The case will be decided in the 2019-20 term.

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