10. State v. Stewart --- 143 Wis.2d 28 (1988)
1. Fact
The complainant, Kodenko, was standing alone in a bus shelter, in downtown, and Stewart and another guy entered the shelter, and a third man, remained outside. And the two men asked for money and the complainant refused. The D, Stewart, demanded multiple times, and reached toward his coat, as if to grab a gun. And another guy told Stewart to "put that gun away" and then, the three people left the complainant. Later, Kodenko testified, he felt threatened despite not being physically touched. Stewart was charged with attempted robbery.
2. Issue
Whether the evidence was sufficient to prove stewarts' conviction for attempted robbery, under wisconsin's attempt statute?
Specifically, whether the evidence showed that, an intent to commit a robbery, was demonstrated by an act unequivocally which shows that probable completion of the robbery, the crime was likely, but for some intervening factor.
3. Rule
① In Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639 (1979)
This court interpreted sec. 939.32(3) as establishing two elements for the crime of attempt: (1) an intent to commit the crime charged; and (2) sufficient acts in furtherance of the criminal intent to demonstrate unequivocally that it was improbable the accused would desist from the crime of his or her own free will.
② A.L.I. Model Penal Code, sec. 5.01, comment 1, p. 298 (1985.)[3]
A significant question in discussing criminal attempt is, what conduct, "when engaged in with a purpose to commit a crime or to advance toward the attainment of a criminal objective, should suffice to constitute a criminal attempt."
4. Application
The court held three major points.
First, they held that the evidence was sufficient for a rational trier of fact to conclude that Stewart had the intent to commit robbery, because of his gestures that included reaching for a gun. The defendant's friend who stated "put the gun away" would put any victim in a state of fear or apprehension for his life. Second, the statute does not require that the state prove and actual intervention or extraneous factor, the crime is considered complete, once conduct demonstrates the actor probably would not have desisted voluntarily. Lastly, the court held that the voluntary abandonment after the attempt is complete, is not a defense under Wisconsin law.
5. Conclusion
Reversed.