Section 939.05. Parties to crime.

 

(1)  Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

(2)  A person is concerned in the commission of the crime if the person:

(a) Directly commits the crime; or

(b) Intentionally aids and abets the commission of it; or

(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.

1993 a. 486 . It is desirable, but not mandatory, that an information refer to this section if the district attorney knows in advance that a conviction can only be based on participation and the court can instruct and the defendant can be convicted on the basis of this section in the absence of a showing of adverse effect on the defendant. Bethards v. State, 45 Wis. 2d 606 , 173 N.W.2d 634 (1970). It is not error that an information charging a crime does not also charge the defendant with being a party to a crime. Nicholas v. State, 49 Wis. 2d 683 , 183 N.W.2d 11 (1973). Under sub. (2) (c), a conspirator is one who is concerned with a crime prior to its actual commission. State v. Haugen, 52 Wis. 2d 791 , 191 N.W.2d 12 . A complaint charging the defendant as a party to the crime of theft that alleged that an unidentified man stole property and gave it to the defendant who passed it on was insufficient. There must be an allegation that the defendant knew of the commission of the crime. State v. Haugen, 52 Wis. 2d 791 , 191 N.W.2d 12 (1971). An information charging the defendant with being a party to a crime need not set forth the particular subsection relied upon. A defendant can be convicted of 1st-degree murder under this statute even though the defendant claimed only intending to rob and that an accomplice did the shooting. State v. Cydzik, 60 Wis. 2d 683 , 211 N.W.2d 421 (1973). The state need not elect as to which of the elements of the charge it is relying on. Hardison v. State, 61 Wis. 2d 262 , 212 N.W.2d 103 (1973). Conduct undertaken to intentionally aid another in the commission of a crime that yields such assistance constitutes aiding and abetting the crime and whatever it entails as a natural consequence. State v. Asfoor, 75 Wis. 2d 411 , 249 N.W.2d 529 (1977). Defendants may be found guilty under sub. (2) if, between them, they perform all of the necessary elements of the crime with awareness of what the others are doing; each defendant need not be present at the scene of the crime. Roehl v. State, 77 Wis. 2d 398 , 253 N.W.2d 210 (1977). There are 2 party-to-a-crime theories. Aiding and abetting under sub. (2) (b) and conspiracy under sub. (2) (c). State v. Charbarneau, 82 Wis. 2d 644 , 264 N.W.2d 227 (1978). Withdrawal from a conspiracy under sub. (2) (c) must be timely. Zelenka v. State, 83 Wis. 2d 601 , 266 N.W.2d 279 (1978). This section applies to all crimes unless legislative intent clearly indicates otherwise. State v. Tronca, 84 Wis. 2d 68 , 267 N.W.2d 216 (1978). Proof of a "stake in the venture" is not needed to convict under sub. (2) (b). Krueger v. State, 84 Wis. 2d 272 , 267 N.W.2d 602 (1978). Multiple conspiracies and single conspiracies are distinguished. Bergeron v. State, 85 Wis. 2d 595 , 271 N.W.2d 386 (1978). A jury need not unanimously agree whether the defendant: 1) directly committed the crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134 , 280 N.W.2d 288 (1979). An aider and abettor who withdraws from a conspiracy does not remove himself or herself from aiding and abetting. May v. State, 97 Wis. 2d 175 , 293 N.W.2d 478 (1980). A party to a crime is guilty of that crime whether or not that party intended the crime or had the intent of its perpetrator. State v. Stanton, 106 Wis. 2d 172 , 316 N.W.2d 134 (Ct. App. 1982.) The elements of aiding and abetting are undertaking conduct that will aid another in the execution of the crime and a conscious desire that the conduct will yield that aid. State v. Hecht, 116 Wis. 2d 605 , 342 N.W.2d 721 (1984). The jury need not unanimously agree as to in which of the alternative ways under sub. (2) a defendant has committed the offense under the party to the crime theory. While there may be distinctions between aiding abetting and conspiracy, the distinctions are often blurred. State v. Hecht, 116 Wis. 2d 605 , 342 N.W.2d 721 (1984). Testimony concerning a party to the crime defendant's whereabouts during planning sessions for the crime was not an alibi and did not require a notice of alibi under s. 971.23 (8). State v. Horenberger, 119 Wis. 2d 237 , 349 N.W.2d 692 (1984). Depending on the facts of the case, armed robbery can be a natural and probable consequence of a robbery. In that case, an aider and abettor need not have had actual knowledge that the principals would be armed. State v. Ivey, 119 Wis. 2d 591 , 350 N.W.2d 622 (1984). Sub. (2) (c) may be violated where the defendant solicits a 2nd person to procure a 3rd person to commit a crime. State v. Yee, 160 Wis. 2d 15 , 465 N.W.2d 260 (Ct. App. 1990). Individual officers are personally responsible for criminal acts committed in the name of a corporation. State v. Kuhn, 178 Wis. 2d 428 , 504 N.W.2d 405 (Ct. App. 1993). A defendant may be guilty of felony murder, party to a crime, if the defendant participates with an accomplice in a felony listed in s. 940.03 and the accomplice kills another. There is no requirement that the defendant have an intent to kill or directly cause the death. State v. Rivera, 184 Wis. 2d 485 , 516 N.W.2d 391 (1994), State v. Chambers, 183 Wis. 2d 316 , 515 N.W.2d 531 (Ct. App. 1994), State v. Oimen, 184 Wis. 2d 423 , 516 N.W.2d 399 (Ct. App. 1994). There is a distinction between conspiracy as a substantive inchoate crime under s. 939.31 and conspiracy as a theory of prosecution for a substantive crime under s. 939.05 (2) (c). State v. Jackson, 2005 WI App 104 , 281 Wis. 2d 137 , 701 N.W.2d 42 , 04-1603 . The unanimity requirement was satisfied when the jury unanimously found that the accused participated in the crime. Lampkins v. Gagnon, 710 F. 2d 374 (1983). This section does not shift the burden of proof. The prosecution need not specify which paragraph of sub. (2) it intends to proceed under. Madden v. Israel, 478 F. Supp. 1234 (1979). Liability for coconspirator's crimes in the Wisconsin party to a crime statute. 66 MLR 344 (1983). Application of Gipson's unanimous verdict rationale to the Wisconsin party to a crime statute. 1980 WLR 597. Wisconsin's party to a crime statute: The mens rea element under the aiding and abetting subsection, and the aiding and abetting-choate conspiracy distinction. 1984 WLR 769.