## Facts

- James Oimen, Shawn Murphy McGinnis, and David Hall planned to rob Tom Stoker, a bookie believed to keep large sums of cash at his home.
- Oimen supplied detailed information about Stoker’s house, including a diagram and where money was likely kept.
- On January 2, 1989, McGinnis and Hall went to Stoker’s property armed (including a BB gun); Oimen waited nearby in a pickup truck as the planned getaway driver.
- Stoker, suspecting trouble, armed himself with a rifle and shot and killed McGinnis during the attempted robbery.
- The State charged Oimen as a party to a crime with attempted armed robbery and felony murder predicated on the attempted armed robbery (among other charges).
- A jury convicted Oimen of felony murder and attempted armed robbery as a party to a crime; the circuit court denied his motion to dismiss the felony-murder charge.

## Issues

1. Whether Wisconsin’s felony-murder statute, Wis. Stat. § 940.03, applies when the person killed is a co-felon and the fatal shot is fired by the intended victim of the underlying felony.
2. Whether the trial court erroneously instructed the jury on the temporal element of felony murder by allowing a killing occurring “at some time after” the underlying felony, effectively including immediate flight within “while committing or attempting to commit.”

## Decision

- The Wisconsin Supreme Court affirmed the convictions.
- The court held § 940.03 applies when a co-felon is killed by the intended victim, if the defendant’s conduct is a substantial factor in causing the death during the commission or attempted commission of an enumerated felony.
- The court held the challenged instruction was not erroneous because “while committing or attempting to commit” includes immediate flight, and the instruction (read as a whole and applied to the evidence) did not mislead the jury.

## Legal Principles

- Under Wis. Stat. § 940.03, the State must prove (1) the defendant caused the death under Wisconsin’s substantial-factor causation standard, and (2) the death occurred while the defendant was committing or attempting to commit an enumerated felony.
- Felony-murder liability under § 940.03 is not limited by the identity of the shooter; a defendant may be liable even when the intended victim kills a co-felon.
- A defendant’s conduct need not be the sole cause of death; intervening defensive acts by the intended victim do not necessarily break causation where the lethal response is a foreseeable result of an armed felony attempt.
- “While committing or attempting to commit” in § 940.03 includes the period of immediate flight from the felony.
- Party-to-a-crime participation (including aiding, abetting, or conspiring) can satisfy felony-murder causation when the participant’s actions substantially contribute to the confrontation producing the death.

## Conclusion

The court interpreted Wisconsin’s felony-murder statute to permit conviction when an intended victim kills a co-felon during an attempted enumerated felony, so long as the defendant’s conduct was a substantial factor in causing the death, and it approved an instruction treating immediate flight as within the statute’s temporal scope.


State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Wis. 1994)