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§ 943.10(2), Burglary While Armed – nexus of weapon to underlying crime

State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)
For Gardner: Steven P. Weiss, SPD, Madison Appellate

Holding: Gardner was convicted of burglary while armed, § 943.10(2), and argues that the crime requires a nexus of weapon to burglary. The argument fails, largely on authority of State v. Norris, 214 Wis. 2d 25, 571 N.W.2d 857 (Ct. App. 1997).

Gardner next challenges his conviction claiming that “due process of law and fundamental fairness demand” that there be some nexus between the commission of the underlying crime and the fact that the accused was carrying a weapon.  The State responds that the nexus issue is controlled by State v. Norris, 214 Wis.2d 25, 571 N.W.2d 857 (Ct. App. 1997).  We agree.

Norris rejected the argument that a nexus between the burglary and the weapon is required under § 943.10(2)(b), Stats., which enhances the burglary penalty when the burglar arms himself or herself while committing a burglary.  See Norris, 214 Wis.2d at 28-29, 571 N.W.2d at 858-59.  Norris based his argument on State v. Peete, 185 Wis.2d 4, 517 N.W.2d 149 (1994), which held that “the State must prove that a defendant possessed a weapon to facilitate commission of the predicate offense” in order for the general weapons penalty enhancer, § 939.63(1)(a), Stats., to apply.  Norris, 214 Wis.2d at 28, 571 N.W.2d at 858 (citing Peete, 185 Wis.2d at 14, 517 N.W.2d at 150).  This court explained the difference between the general weapon enhancer in Peete and the armed burglary statute, noting that the language in the armed burglary statute is “precise and plainly distinct” from that in the general enhancer.  See Norris, 214 Wis.2d at 28, 571 N.W.2d at 858.  “The statute’s language does not suggest a nexus requirement, but rather imposes a separate necessary element of the offense ….”  Id.  The court noted that such a construction was rational, as “[i]n a burglary, there is always an increased chance of danger where a person arms himself.”  Id. at 29, 571 N.W.2d at 858.

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