Section 943.32. Robbery.

 

(1)  Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class E felony:

(a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property; or

(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

(2)  Whoever violates sub. (1) by use or threat of use of a dangerous weapon, a device or container described under s. 941.26 (4) (a) or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon or such a device or container is guilty of a Class C felony.

(3)  In this section “owner" means a person in possession of property whether the person's possession is lawful or unlawful.

1977 c. 173 ; 1979 c. 114 ; 1993 a. 486 ; 1995 a. 288 ; 2001 a. 109 . While a person who by use of force or a gun seeks to repossess specific property that he or she owns and has a present right of possession to might not have the intention to steal, the taking of money from a debtor by force to pay a debt is robbery unless the accused can trace that ownership to the specific coins and bills in the debtor's possession. Edwards v. State, 49 Wis. 2d 105 , 181 N.W.2d 383 (1970). Since attempted robbery requires proof of elements in addition to those required to prove burglary, they are separate and distinct crimes. State v. DiMaggio, 49 Wis. 2d 565 , 182 N.W.2d 466 (1971). It is error not to instruct on the allegations that the defendant was armed and that he attempted to conceal his identity, but it is harmless error when the facts are uncontroverted. Claybrooks v. State, 50 Wis. 2d 79 , 183 N.W.2d 139 (1971). On a charge of armed robbery, the court should instruct as to the definition of a dangerous weapon, but the error is harmless if all the evidence is to the effect that the defendant had a gun. Claybrooks v. State, 50 Wis. 2d 87 , 183 N.W.2d 143 (1971). If the evidence is clear that the defendant was armed, the court need not submit a verdict of unarmed robbery. Kimmons v. State, 51 Wis. 2d 266 , 186 N.W.2d 308 (1971). An information charging armed robbery is void if it fails to allege the use of or threat of force to overcome the owner's resistance. Champlain v. State, 53 Wis. 2d 751 , 193 N.W.2d 868 (1972). Theft is a lesser included offense of robbery. Both require asportation. Moore v. State, 55 Wis. 2d 1 , 197 N.W.2d 820 (1972). Taking a pouch from the victim by force and in such a manner as to overcome any physical resistance or power of resistance constituted robbery and not theft under s. 943.20. Walton v. State, 64 Wis. 2d 36 , 218 N.W.2d 309 (1974). When a victim testified that the defendant's accomplice held an object to his throat while the defendant took money from his person and the defendant testified that no robbery whatsoever occurred, the jury was presented with no evidence indicating that a robbery absent the threat of force had occurred. It was not error to deny the defendant's request for an instruction on theft from a person. State v. Powers, 66 Wis. 2d 84 , 224 N.W.2d 206 (1974). When a defendant lost money to a dice cheat and thereafter recovered a similar amount at gunpoint, the jury could convict despite the defendant's claim that the bills recovered were those lost. Austin v. State, 86 Wis. 2d 213 , 271 N.W.2d 668 (1978). Sub. (1) states one offense that may be committed by alternate means. The jury was properly instructed in the disjunctive on the force element. Manson v. State, 101 Wis. 2d 413 , 304 N.W.2d 729 (1981). Armed robbery can be the natural and probable consequence of robbery. In such 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). If the defendant commits a robbery while merely possessing a dangerous weapon, the penalty enhancer under s. 939.63 is applicable. State v. Robinson, 140 Wis. 2d 673 , 412 N.W.2d 535 (Ct. App. 1987). A defendant's lack of intent to make a victim believe that the defendant is armed is irrelevant in finding a violation of sub. (2); if the victim's belief that the defendant was armed is reasonable, that is enough. State v. Hubanks, 173 Wis. 2d 1 , 496 N.W.2d 96 (Ct. App. 1992). Extortion is not a lesser included offense of robbery. Convictions for both are not precluded. State v. Dauer, 174 Wis. 2d 418 , 497 N.W.2d 766 (Ct. App. 1993). This statute does not require a specific intent that property that is demanded actually be transferred. State v. Voss, 205 Wis. 2d 586 , 556 N.W.2d 433 (Ct. App. 1996), 95-1183 . Asportation, or carrying away, is an element of robbery. The asportation requirement provides a bright line distinction between attempt and robbery. There is no exception for an automobile that is entered by force, but cannot be moved by the defendant. State v. Johnson, 207 Wis. 2d 239 , 558 N.W.2d 375 (1997), 95-0072 . The key to a conviction under sub. (2) is whether the victim reasonably believed that he or she was threatened with a dangerous weapon even though he or she did not see anything that was perceived as a weapon. In applying reasonable belief to the armed-robbery statute courts must consider the circumstances of the individual case. State v. Rittman, 2010 WI App 41 , 324 Wis. 2d 273 , 781 N.W.2d 545 , 09-0708 . The state's attempt to retry the defendant for armed robbery, alleging the use of a different weapon after the trial judge concluded that acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun, violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. Supp. 2d 1066 (2003). Letting Armed Robbery Get Away: An Analysis of Wisconsin's Armed Robbery Statute. Goodstein. 1998 WLR 591.