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§ 941.29(2), Felon in Possession of Firearm — Foreign Conviction as Felony

State v. Alan C. Campbell, 2002 WI App 20, PFR filed 1/16/02
For Campbell: Alexander D. Cossi

Issue: Whether Campbell’s conviction for forgery in another state is regarded as a felony for purposes of felon in possession, § 941.29.

Holding:

¶6. We agree with Campbell that the Ohio forgery statute is broader than Wisconsin’s, and that looking solely at the language of the Ohio statute would be insufficient to prove that Campbell was guilty of possessing a firearm as a felon. However, we are not limited to considering the language of the statute.

¶7. Rather, we agree with the State that the circuit court was entitled to look at the underlying conduct of Campbell’s conviction. The term ‘crime’ is defined in Wis. Stat. § 939.12 as ‘conduct which is prohibited by state law and punishable by fine or imprisonment or both.’ (Emphasis added.) Further, Wis. Stat. § 939.22(6), provides that the meaning of ‘crime’ in § 939.12, is applicable to chapters 939 through 948 of the Wisconsin Statutes. Therefore, in determining whether Campbell violated Wis. Stat. § 941.29(2), the circuit court properly considered Campbell’s conduct that led to his conviction in Ohio.

And, the facts as set forth in the Ohio charge showed that the conduct would have been a felony if committed in Wisconsin, ¶¶8-9. (Taylor v. United States, 495 U.S. 575 (1990), distinguished, ¶¶10-11.)

Though tangential to the summarized point, the formulation of a defense to felon-in-possession ought to take into account proof of identity, especially where the conviction is foreign; on this matter, see U.S. v. Allen, 7th Cir. No. 04-1199, 9/9/04:

The Second Circuit noted that “[t]he majority of courts to consider the question have agreed . . . that a conviction certificate in the same name as the defendant’s is insufficient to prove that the defendant had a prior conviction as an essential element of the crime charged.” Id. at 71-72, citing Weiler, 385 F.2d at 66; Gravatt, 260 F.2d at 498-99; Commonwealth v. Koney, 657 N.E.2d 210, 214-15 (Mass. 1995); Miller v. State, 573 So. 2d 405, 406 (Fla. Dist. Ct. App. 1991); State v. Garrett, 574 P.2d 639, 640 (Or. 1978). We believe that the majority view is sound. Identity of name alone does not prove the identity of a person beyond a reasonable doubt. A conviction record bearing the defendant’s name but no other identifying information is insufficient to identify the conviction as the defendant’s for purposes of proving felon status.

 

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