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Jury need not be unanimous about exact location in building where felon possessed firearm

State v. Julian L. Perez, 2013AP750-CR, District 1, 12/10/13; court of appeals decision (not recommended for publication); case activity

Where the evidence at trial showed that the defendant possessed a firearm over a short span of time at two locations in the same apartment building, the jury did not need to be unanimous as to which location the possession occurred. Instead, unanimity was required only as to whether the defendant had possessed a firearm in the building in question on the date charged.

Perez was charged with being a felon in possession of a firearm and reckless injury based on his conduct at 2725 South 12th Street, Apartment 107. (¶¶2-3). Witnesses testified to seeing him with a gun in the hallway of the apartment building and in apartment 107, where a man named Seymer was shot in the arm. (¶¶3-7). The jury instruction referred to the street address, but not the apartment number. (¶8).

During deliberations the jury asked three questions about the relationship between the charges and the two locations: whether both charges were related to the shooting in the apartment; whether they could convict Perez for possession of a firearm in the hallway if they acquitted him of the reckless injury; and whether the possession charge came from the acts in the hallway or the shooting of Seymer. The trial court answered “yes” to the first two questions, and to the third question told the jury to consider whether the evidence established the elements of the offense. (¶¶9-11). Perez objected to this answer, saying the charge was limited to the conduct in the apartment (though he hadn’t requested the apartment number be included in the instructions) and that the court’s answer allowed the jurors to base a finding of guilt on different conduct in violation of the unanimity requirement. (¶12).

The court of appeals rejects Perez’s argument, relying on State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982), which rejected a unanimity challenge by defendant convicted of one battery based on evidence of a physical altercation during which the defendant threw a log at and punched the victim, and State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983), which also rejected a unanimity challenge by a defendant convicted of a single count of sexual assault for different types of sexual acts at multiple locations over a period of time:

¶23      This case is analogous to Giwosky. Here, the ultimate issue is whether Perez possessed a firearm. Whether he possessed the firearm within a short period of time in the hallway of the apartment building, or inside an apartment unit within the same building, raises the same “continuous course of conduct” issue as GiwoskySee id. at 451. Like in Giwosky, where throwing a log and then entering into a separate physical altercation within a short time span was considered an alternative means of committing the offense of battery, possessing a firearm in a hallway or an apartment unit in the same building, within a short timespan, is an alternative means of committing the offense of possessing a firearm as a felon. Perez’s offense was one, continuous offense.

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¶25      Here, there is evidence that Perez possessed a shotgun on the morning of July 27, 2011, in Seymer’s apartment at 2725 South 12th Street. There is evidence that Perez possessed a .357 Magnum in the hall near Mullins’s apartment later that evening. There is evidence that Perez possessed a .357 Magnum that evening in Seymer’s apartment, which is corroborated by inference because Mullins heard a shot in the building shortly after her encounter with Perez in the hall. Just as surely as different types of sexual assault occurring over a period of several hours are conceptually similar acts of nonconsensual sexual intercourse, see Lomagrosupra, possession of one type of firearm in the hall or in an apartment of the same building, or possession of another type of firearm a few hours earlier in an apartment in the same building, are conceptually similar means of committing the same crime.

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