State v. Stewart
143 Wis. 2d 28, 420 N.W.2d 44, 1988 Wisc. LEXIS 25 (1988)
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Rule of Law:
Under Wisconsin's attempt statute, the prosecution is not required to prove that an actual intervention by an outside force prevented the crime's completion. The statute is satisfied when a defendant's acts progress to a point where it is improbable they would voluntarily desist on their own, thus unequivocally demonstrating criminal intent.
Facts:
- Scott Kodanko was waiting alone inside a three-sided bus shelter in downtown Milwaukee.
- Walter Lee Stewart and another man, Mr. Moore, entered the shelter and blocked Kodanko's exit, while a third man, Mr. Levy, remained outside.
- Moore and Stewart repeatedly demanded change from Kodanko in an increasingly loud voice, which Kodanko refused.
- Stewart then reached into his coat with his right hand at his waist level.
- Upon seeing Stewart's action, Moore said something to the effect of 'put that gun away.'
- At that point, Levy entered the shelter and said to Stewart and Moore, 'Come on, let’s go.'
- The three men then left the bus shelter together.
Procedural Posture:
- In a bench trial at the circuit court for Milwaukee county, Walter Lee Stewart was found guilty of attempted robbery.
- Stewart, as appellant, appealed his conviction to the Wisconsin Court of Appeals.
- The Court of Appeals reversed the conviction, finding insufficient evidence that Stewart would have committed the crime 'except for the intervention of another person or extraneous factor.'
- The State of Wisconsin, as appellant, appealed the Court of Appeals' decision to the Supreme Court of Wisconsin.
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Issue:
Does the Wisconsin attempt statute, which requires that a defendant would have committed a crime 'except for the intervention of another person or some other extraneous factor,' require the prosecution to prove an actual, external intervention occurred as an element of the crime?
Opinions:
Majority - Shirley S. Abrahamson, J.
No. The phrase 'except for the intervention of another person or some other extraneous factor' in the attempt statute does not add an additional element that the State must prove. Rather, this language describes the point at which the defendant's conduct has gone far enough to constitute the crime of attempt. The statute requires that the defendant's acts demonstrate unequivocally that they have passed the point where most people would think better of their conduct and desist on their own. The key inquiry is whether, under the circumstances, it was improbable that the accused would have voluntarily ceased their criminal actions. Once a defendant's conduct has reached this stage, the crime of attempt is complete, and voluntary abandonment is not a defense.
Analysis:
This decision clarifies the 'actus reus' required for a criminal attempt in Wisconsin, solidifying the state's use of the 'probable desistance' test. The court rejects the interpretation that the statute requires an actual thwarted attempt, thereby preventing a significant narrowing of attempt liability. This precedent establishes that a defendant can be convicted of attempt even if they abandon the crime, as long as their prior acts had already crossed the threshold where voluntary desistance became improbable. The ruling also explicitly states that voluntary abandonment is not an affirmative defense to a completed attempt in Wisconsin, aligning the state with the traditional common law view and leaving any change to the legislature.
