By John DiMotto
Did you ever REALLY wonder what LEGALLY constitutes being a "party to a crime" (PTAC)? I have been asked that question on more than one occasion by non-lawyers and when I ask them what they believe the answer is, they usually respond "if you are there" you must be a party to the crime. However, that is not accurate. The correct answer -the legal definition is found in the Wisconsin Statutes and is further explained in the Wisconsin Criminal Jury Instructions and appellate decisions.
Wisconsin Statutes section 939.05 address "Parties to Crime." It sets forth that:
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 is 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 party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and under the circumstances is a natural and probable consequence of the intended crime. A person is not a party to the crime is the person 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.
The statutory definition seems clear, but some concrete examples are helpful to an accurate understanding of the concept of "party to a crime."
1) Direct Commission -- Armed Robbery -- If "A" decides to rob a bank, takes a gun, goes into a bank, points the gun at the bank teller and demands money or says he will shoot the teller, "A" is given money and flees the bank, "A" has directly committed an Armed Robbery because "A"'s conduct meets all elements of the crime.
2) Intentionally Aids and Abets the Commission of a Crime -- Armed Robbery (PTAC) -- If "A" decides to rob a bank but wants someone to be a "lookout" (keep an eye out for the presence of police and to let "A" know if any police might come on the scene to stop the commission of the crime) and so "A" tells "B" of his plan to rob a bank and asks "B" to come along and stand at the door of the bank and to warn "A" if the police are coming and "B" agrees and does so, "B" is a party to the crime of Armed Robbery and is as guilty as "A" even though "B" did not have a gun, did not threaten anyone and did not take the money.
3) Conspiracy PTAC theory -- Armed Robbery (PTAC) -- If "A", B" and "C" agree to rob a bank and "A", "B" and "C" each consciously intend to make it happen and have a stake in the venture and one of them actually robs the bank, all three are equally guilty of the crime.
4) Natural and Problem Consequence theory -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway driver" (i.e. "B" will drive "A" to the bank and drive "A" away after the robbery.) If "A" intentionally shoots and kills the bank teller BOTH "A" and "B" can be convicted of First Degree Intentional Homicide as parties to the crime since homicide is a natural and probable consequence of an armed robbery. This is so even though "B" never entered the bank. The reason for this liability is to deter people from joining in such crimes.
5) Withdrawal theory -- Armed robbery (PTAC) -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway" driver but when "A" comes to "B"is house "B" tells him he has changed his mind and will not drive "A" to the bank, "B" has withdrawn before the commission of the crime and can not be held responsible. What is critical to legally withdrawing from being a party to a crime is the withdrawal must be done before any acts in furtherance of the crime are done.
Jury Instructions on Party to a Crime
Since the "Intentionally Aid and Abet" theory is most often used by prosecutors to charge a person who does not directly commit the crime, I will focus on that concept.
A person intentionally aids and abets the commission of a crime by either:
1) Actually assisting the person who directly commits the crime (i.e. "B" comes along with "A" and acts as a lookout, "B" is a party to the crime); or
2) Is ready and willing to assist the person who directly commits the crime and the person who directly commits the crime knows of the willingness to assist. (i.e. "A" tells "B" that he is going to rob a bank one week from the day of their conversation and "B" tells "A" that if he comes to learn of anything that will prevent the successful completion of the crime he will notify "A", "B" is a party to a crime.)
A person does not intentionally aid and abet the commission of a crime if he is only a bystander or spectator and does nothing to assist the commission of the crime. (i.e. "A" is dealing drugs out of the kitchen of his home. He sells to people who come to the back door. "B" is in the home visiting "A"'s sister who is "B" girlfriend. If there is no interaction between "B" and "A", "B"'s presence in the home does not subject him to any criminal liability.
State v. Rundle, 176 Wis.2d 985 (1983). For aiding and abetting, a person needs to engage in some conduct, verbal or overt, that as a matter of objective fact aids another in committing the crime AND the person must have a conscious desire or intent that the conduct will in fact yield such assistance.
State v. Simplot, 180 Wis.2d 383 (Ct. App. 1993). There is no need for the jury to be unanimous regarding the alternative ways for a person to be a party to a crime. So long as all twelve agree that the person either directly committed the crime or aided and abetted the commission that is sufficient.
Holland v. State, 91 Wis.2d 134 (1979). Party to a crime statute does not create a separate and distinct offense. It sets forth a ways to be involved in the commission of a substantive crime. Also, there is often overlapping between being an aider and abettor and a conspirator.
State v. Whiting, 136 Wis.2d 400 (Ct. App. 1987). To convict a person of being a party to a crime there need only be evidence showing that the person was a willing participant. for example, merely locating a homicide victim and bringing the shooter and victim together is enough.
State v. Marshall, 92 Wis.2d 107 (1979). A person need not perform an act which constitutes an essential element of a crime in order to be an aider and abettor. A person need only undertake some conduct.
State v. Zalenka, 130 Wis.2d 34 (1986). Proof of acts which can support liability as a party to a crime is separate from proof of the underlying criminal act.
State v. King, 120 Wis.2d 285 (Ct. App. 1984). Mere presence and ambivalent conduct at the scene of a crime is insufficient to support a conviction as a party to a crime.
State v. Williquette, 125 Wis.2d 86 (Ct. App. 1985). An omission may constitute aiding and abetting only if a person has a legal duty to act. (A parent has a legal duty to protect one's child and failing to protect one's child from the other parent may constitute aiding and abetting.)
State v. Martinez, 150 Wis.2d 47 (1989). Being ready and willing to assist the commission of a crime is "some conduct" that as objective fact aids another.
Bethards v. State, 45 Wis.2d 606 (1970). A lookout can properly be held vicariously liable for the crime of another.
Clark v. State, 62 Wis.2d 194 (1974). Supplying a gun; loading the gun is sufficient for party to a crime liability.
State v. Charbarneau, 82 Wis.2d 644 (1978). When a person is ready and willing to render aid that person is an aider and abettor. This is a reasonable assumption since this tends to further the criminal objective by providing support.
In the Interest of R.B., 108 Wis.2d 494 (Ct. App. 1982). Mere presence at a party, even though the juvenile had knowledge that beer would be there and its accessibility to him is insufficient to constitute possession of beer.
State v. Doney, 114 Wis.2d 309 (Ct. App. 1983). A co-conspirator is an agent in a criminal venture. Persons who enter into a conspiracy become ad hoc agents for one another.
The concept of party to a crime involves an intent to be involved in the commission of a crime and some conduct in furtherance of the crime. "Just being present" at a crime scene or "just knowing" that a crime is being committed alone does not make one criminally liable for the conduct of the criminal actor. To sum it up, to be a party to a crime requires "mens rea."