Wisconsin Statutes

Wis. Stat. § 939.66 (2026)

Conviction of included crime permitted

✓ current as of July 2026

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939.66939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

939.66(1)(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

939.66(2)(2) A crime which is a less serious type of criminal homicide under subch. I of ch. 940 than the one charged.

939.66(2m)(2m) A crime which is a less serious or equally serious type of battery than the one charged.

939.66(2p)(2p) A crime which is a less serious or equally serious type of violation under s. 948.02 than the one charged.

939.66(2r)(2r) A crime which is a less serious type of violation under s. 943.23 than the one charged.

939.66(3)(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.

939.66(4)(4) An attempt in violation of s. 939.32 to commit the crime charged.

939.66(4m)(4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under s. 948.22 (2).

939.66(5)(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.

939.66(6)(6) A crime specified in s. 940.285 (2) (b) 4. or 5. when the crime charged is specified in s. 940.225 (1), (2) or (3), 940.30, or 940.60 (2) or (3) or s. 940.19 (2), 2023 stats., s. 940.19 (4), 2023 stats., s. 940.19 (5), 2023 stats., or s. 940.19 (6), 2023 stats.

939.66(6c)(6c) A crime that is a less serious type of violation under s. 940.285 than the one charged.

939.66(6e)(6e) A crime that is a less serious type of violation under s. 940.295 than the one charged.

939.66(7)(7) The crime specified in s. 940.11 (2) when the crime charged is specified in s. 940.11 (1).

939.66 HistoryHistory: 1985 a. 29, 144, 306, 332; 1987 a. 332 s. 64; 1987 a. 349, 403; 1989 a. 31 s. 2909b; 1989 a. 250; 1991 a. 205; 1993 a. 441, 445, 491; 2005 a. 430; 2015 a. 81; 2025 a. 24 s. 93.

939.66 AnnotationTo submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser and the jury might find the disputed fact either way. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).

939.66 AnnotationAttempted battery can only be an included crime as to the specific offenses listed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).

939.66 AnnotationA charge of possession of a pistol by a minor is not an included crime in a charge of attempted first-degree murder because it includes the element of minority that the greater crime does not. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).

939.66 AnnotationDisorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon, 50 Wis. 2d 73, 183 N.W.2d 84 (1971).

939.66 AnnotationWhile attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972).

939.66 AnnotationUnder sub. (1), the emphasis is on the proof, not the pleading, and the “stricken word test” stated in Eastway, 189 Wis. 56 (1926), is not incorporated in the statute. Martin v. State, 57 Wis. 2d 499, 204 N.W.2d 499 (1973).

939.66 AnnotationSection 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974).

939.66 AnnotationWhen the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as a lesser included offenses was not error. Hayzes v. State, 64 Wis. 2d 189, 218 N.W.2d 717 (1974).

939.66 AnnotationIn order to justify the submission of an instruction on a lesser degree of homicide than that with which the defendant is charged, there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State, 68 Wis. 2d 436, 228 N.W.2d 645 (1975).

939.66 AnnotationFor one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978).

939.66 AnnotationThe test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of the case. State v. Verhasselt, 83 Wis. 2d 647, 266 N.W.2d 342 (1978).

939.66 AnnotationThe trial court erred in denying the defendant’s request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981).

939.66 AnnotationWithout clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983).

939.66 AnnotationWhen a defendant charged with second-degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia, 118 Wis. 2d 655, 348 N.W.2d 527 (1984).

939.66 AnnotationUnder the “elements only” test, offenses that require proof of nonconsent are not lesser included offenses of offenses for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).

939.66 AnnotationWhen police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon the defendant’s return home, confiscating a small quantity of the same drugs, the defendant’s conviction for a lesser-included offense of possession and a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).

939.66 AnnotationReckless use of weapons under former s. 941.20 (1) (a), 1983 stats., was not a lesser included offense of crime of endangering safety by conduct regardless of life while armed under former ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington, 134 Wis. 2d 260, 397 N.W.2d 484 (1986).

939.66 AnnotationThe court must instruct the jury on a properly requested lesser offense even though the statute of limitations bars the court from entering a conviction on the lesser offense. State v. Muentner, 138 Wis. 2d 374, 406 N.W.2d 415 (1987).

939.66 AnnotationThe court of appeals may not direct a circuit court to enter a judgment of conviction of a lesser included offense when a jury verdict of guilty on a greater offense is reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990).

939.66 AnnotationConvictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

939.66 AnnotationEvidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state’s prosecuting position. State v. Fleming, 181 Wis. 2d 546, 510 N.W.2d 837 (Ct. App. 1993).

939.66 AnnotationThis section does not bar multiple convictions when homicides are “equally serious.” Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment that the other did not. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

939.66 AnnotationMisdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), 97-0938.

939.66 AnnotationThere is no rule that when a more specific crime could have been charged, the defendant loses the right to a lesser-included instruction on a more general offense. That retail theft, which was not a lesser-included offense of armed robbery, could have been charged did not prevent the giving of an instruction on theft as a lesser included offense of armed robbery. State v. Jones, 228 Wis. 2d 593, 598 N.W.2d 259 (Ct. App. 1999), 98-1681.

939.66 AnnotationA lesser included offense must be both lesser and included. An offense with a heavier penalty cannot be regarded as a lesser offense than one with a lighter penalty. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00-1158.

939.66 AnnotationWhen a jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although it had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176. See also State v. Cox, 2007 WI App 38, 300 Wis. 2d 236, 730 N.W.2d 452, 06-0419.

939.66 AnnotationSeparate prosecutions for a carjacking that occurred on one day and operating the same car without the owner’s consent on the next did not violate sub. (2r) or the constitutional protection against double jeopardy. State v. McKinnie, 2002 WI App 82, 252 Wis. 2d 172, 642 N.W.2d 617, 01-2764.

939.66 AnnotationSub. (2m) only applies to battery under s. 940.19 [now s. 940.60] and not to battery by a prisoner under s. 940.20 [now s. 940.61 (2)]. Charging both was not multiplicitous and not a double jeopardy violation. State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1, 01-0826.

939.66 AnnotationSection 948.40 (1) and (4) (a), contributing to the delinquency of a child with death as a consequence, is not a “type of criminal homicide” included under sub. (2). It provides a more serious punishment when “death is a consequence” of its violation. In contrast, the homicide statutes in ch. 940 target those who “cause the death” of another. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

939.66 AnnotationThe defendant’s guilty plea to second-degree sexual assault of a child was not knowing, intelligent, and voluntary because the defendant was incorrectly informed that the defendant faced a potential sentence of 100 years if convicted of both first-degree and second-degree sexual assault. Because second-degree sexual assault is a lesser-included offense to first-degree sexual assault, the defendant could not have lawfully been convicted of both offenses. Thus, the defendant was not truly aware of the direct consequences of his plea and was entitled to withdraw it. State v. Douglas, 2018 WI App 12, 380 Wis. 2d 159, 908 N.W.2d 466, 16-1865.

939.66 AnnotationThe only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life” is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim’s life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.

939.66 AnnotationMultiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? Albee. 1990 WLR 553.

939.66 NoteNOTE: See also notes to Art. I, sec. 8, Double Jeopardy.

Notes of Decisions

Cited in 106 cases (9 in the last 5 years), 1959–2025 · leading case: State v. Davison, 2003 WI 89 (Wis. 2003).

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State v. Davison, 2003 WI 89 (Wis. 2003). · cites it 108× “Section 939.66 reads: Upon prosecution for a crime, the actor may be *178 convicted of either the crime charged or an included crime, but not both.”

State v. Heather L. Steinhardt, 2017 WI 62 (Wis. 2017). · cites it 52× “Here, however, the State concedes, and we agree, that Counts 1 and 2 are identical in law due to the operation of Wis. Stat. § 939.66 (2p),12 which makes failure to protect a child from sexual assault a lesser-included offense of first-degree sexual assault of a child under 13.”

State v. Patterson, 2010 WI 130 (Wis. 2010). · cites it 57× “6 We conclude that the convictions are not multiplicitous because contributing to the delinquency of a child with death as a consequence is not a "type of criminal homicide" for purposes of Wis. Stat. § 939.66 (2), and further conclude that the legislature intended to permit…”

State v. Vassos, 579 N.W.2d 35 (Wis. 1998). · cites it 90× “" The statute lists 12 different statutory definitions of included crimes.”

State v. Lechner, 576 N.W.2d 912 (Wis. 1998). · cites it 47× “299, 304 (1932), which has been codified in Wis. Stat. § 939.66 (1). 9 See Sauceda, 168 Wis.”

State v. McKee, 2002 WI App 148 (Wis. Ct. App. 2002). · cites it 27× “See Wis. Stat. § 939.66 (1). We will therefore assume, without deciding, that each of McKee's 1995 convictions is for a "crime which does not require proof of any fact in addition to those which must be proved for the crime charged.”

State v. Hansen, 2001 WI 53 (Wis. 2001). · cites it 12× “45 avoids several incongruities with other provisions of the Wisconsin Statutes that define the relationship between acts and offenses and that codify double jeopardy principles.”

State v. Patterson, 2009 WI App 161 (Wis. Ct. App. 2009). · cites it 27× “Like the defendant in Davison , Patterson argues that Wis. Stat. § 939.66 shows a clear legislative intent not to allow punishment for both of his crimes.”

State v. Stevens, 367 N.W.2d 788 (Wis. 1985). · cites it 8× “8 (1) [8] of the Wisconsin Constitution or violate the *309 provisions of sec. 939.66, Stats. 1981-1982 [9] or sec.”

State v. Muentner, 406 N.W.2d 415 (Wis. 1987). · cites it 8× “State, 29 Wis. 2d 20 , 138 N.W.2d 25 (1965). *386 There has been no objection in this case that the misdemeanor offenses under sec.”

State v. Kyle Lee Monahan, 913 N.W.2d 894 (Wis. 2018). · cites it 4× “" The circuit court dismissed count three by operation of Wis. Stat. § 939.66 (2), which states, in relevant part: "[u]pon prosecution for a crime, the actor may be conviction of either the crime charged or an included crime, but not both.”

State v. Sauceda, 485 N.W.2d 1 (Wis. 1992). · cites it 6× “[8] *494 The Blockburger "elements only" test was codified under sec. 939.66(1), Stats. [9] Under the "elements only" test, an "`offense is a `lesser included' one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those…”

Show all 106 citing cases →

— Wis. Stat. § 939.66(1) — 41 cases

State v. Sauceda, 485 N.W.2d 1 (Wis. 1992). “[8] *494 The Blockburger "elements only" test was codified under sec. 939.66(1), Stats. [9] Under the "elements only" test, an "`offense is a `lesser included' one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those…”

State v. Muentner, 406 N.W.2d 415 (Wis. 1987). “State, 29 Wis. 2d 20 , 138 N.W.2d 25 (1965). *386 There has been no objection in this case that the misdemeanor offenses under sec.”

State v. Davison, 2003 WI 89 (Wis. 2003). “Section 939.66 reads: Upon prosecution for a crime, the actor may be *178 convicted of either the crime charged or an included crime, but not both.”

State v. Hansen, 2001 WI 53 (Wis. 2001). “45 avoids several incongruities with other provisions of the Wisconsin Statutes that define the relationship between acts and offenses and that codify double jeopardy principles.”

State v. Heather L. Steinhardt, 2017 WI 62 (Wis. 2017). “Here, however, the State concedes, and we agree, that Counts 1 and 2 are identical in law due to the operation of Wis. Stat. § 939.66 (2p),12 which makes failure to protect a child from sexual assault a lesser-included offense of first-degree sexual assault of a child under 13.”

— Wis. Stat. § 939.66(2) — 16 cases

State v. Jenkins, 483 N.W.2d 262 (Wis. Ct. App. 1992).

State v. Davison, 2003 WI 89 (Wis. 2003). “Section 939.66 reads: Upon prosecution for a crime, the actor may be *178 convicted of either the crime charged or an included crime, but not both.”

State v. Patterson, 2010 WI 130 (Wis. 2010). “6 We conclude that the convictions are not multiplicitous because contributing to the delinquency of a child with death as a consequence is not a "type of criminal homicide" for purposes of Wis. Stat. § 939.66 (2), and further conclude that the legislature intended to permit…”

State v. Morgan, 536 N.W.2d 425 (Wis. Ct. App. 1995).

State v. Patterson, 2009 WI App 161 (Wis. Ct. App. 2009). “Like the defendant in Davison , Patterson argues that Wis. Stat. § 939.66 shows a clear legislative intent not to allow punishment for both of his crimes.”

— Wis. Stat. § 939.66(2m) — 8 cases

State v. Davison, 2003 WI 89 (Wis. 2003). “Section 939.66 reads: Upon prosecution for a crime, the actor may be *178 convicted of either the crime charged or an included crime, but not both.”

State v. Vassos, 579 N.W.2d 35 (Wis. 1998). “" The statute lists 12 different statutory definitions of included crimes.”

State v. Reynolds, 557 N.W.2d 821 (Wis. Ct. App. 1996).

State v. Ellington, 2005 WI App 243 (Wis. Ct. App. 2005).

— Wis. Stat. § 939.66(2p) — 2 cases

State v. Benson, 921 N.W.2d 3 (Wis. Ct. App. 2018).

— Wis. Stat. § 939.66(2r) — 3 cases

State v. McKinnie, 2002 WI App 82 (Wis. Ct. App. 2002).

State v. Marte L. Coffee (Wis. Ct. App. 2021).

State v. David D. Harris (Wis. Ct. App. 2025).

— Wis. Stat. § 939.66(3) — 3 cases

State v. Rundle, 480 N.W.2d 518 (Wis. Ct. App. 1992).

State v. Eastman, 518 N.W.2d 257 (Wis. Ct. App. 1994).

State v. Dibble, 2002 WI App 219 (Wis. Ct. App. 2002).

— Wis. Stat. § 939.66(4) — 2 cases

State v. Cvorovic, 462 N.W.2d 897 (Wis. Ct. App. 1990).

State v. Dominic Randall White-Andrews (Wis. Ct. App. 2025).

— Wis. Stat. § 939.66(5) — 1 case

State v. Richards, 365 N.W.2d 7 (Wis. 1985).

— Wis. Stat. § 939.66(6) — 1 case

State v. Selmon, 498 N.W.2d 876 (Wis. Ct. App. 1993).

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