State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius
Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).
¶9 Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before, did not have keys to the facility housing them, and did not have “imminent or unfettered access” to them at the time the crime was committed. We are not persuaded. Kueny owned the weapons, he paid the storage fees and, although he did not possess a key, upon request Allwright would have had to surrender to him either a key or the firearms. The firearms were in Kueny’s possession because they were in an area over which he had control and he intended to exercise control over them. See State v. Allbaugh, 148 Wis. 2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989) (approving concept of “possession” as stated in Wis JI—Criminal 920, that “[a]n item is … in a person’s possession if it is in an area over which the person has control and the person intends to exercise control over the item”). Whether or not tagged “constructive possession,”  the essential point is that Kueny had ultimate control over the stored firearms. See United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986). “He need not have them literally in his hands or on premises that he occupies but he must have the right … to possess them, [just] as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.” Id. Kueny’s assertion that he did not have contact with the weapons for several years does not establish lack of possession, especially in view of his testimony that he was allowing the firearms to appreciate in value for his intended later sale of them.
 The Wisconsin Criminal Jury Instructions Committee has cautioned against use of the term “constructive possession” because it implies something other than “actual” or “real” possession. State v. Allbaugh, 148 Wis. 2d 807, 813-14, 436 N.W.2d 898 (Ct. App. 1989); Wis JI—Criminal 920, Comment 2.