00-2841 State v. Robins

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“We conclude that an attempted child enticement under Wis. Stat. sec. 948.07 (1999-2000) may be charged where the intervening extraneous factor that makes the offense an attempted rather than completed crime is the fact that unbeknownst to the defendant, the ‘victim’ is not a child at all, but an adult posing as a child. We further conclude that the allegations in the complaint and the evidence at the preliminary hearing were sufficient to establish probable cause in this case. Finally, because the child enticement statute regulates conduct rather than speech or expression, the First Amendment is not implicated by this prosecution. …

“The court of appeals’ interpretation of the child enticement statute in [State v.] Koenck [2001 Wi App 93] was entirely correct, and we reject Robins’ argument that the case should be overruled. Here, as in Koenck, the extraneous factor that intervened to make the crime an attempted rather than completed child enticement is the fact that ‘Benjm13’ was an adult government agent rather than a 13-year-old boy. That there may be or could have been other intervening factors does not make this an impermissible prosecution for an ‘attempt to attempt a crime.'”

Affirmed.

Outagamie County, Gage, J. Sykes, J.

Attorneys:

For Appellant: Craig W. Albee, Milwaukee

For Respondent: Jennifer E. Nashold, James E. Doyle, Madison