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§ 941.29, Felon in Possession of Firearm – “Handling” = Element of “Possesses”

State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman

Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.


¶19 At the outset, we note the absence of any mens rea5 requirement in this statute. That is, the statute makes no reference to intent and therefore creates a strict liability offense. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999); State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996). As a result, the State is only required to show that the felon “possessed” the firearm with knowledge that it is a firearm. In this context, “possess,” according to the legal definition, simply “means that the defendant knowingly had actual physical control of a firearm.” Wis JI——Criminal 1343 (1997); see State v. Loukota, 180 Wis. 2d 191, 201, 508 N.W.2d 896, (Ct. App. 1993) (determining that this definition of possession was appropriately given and that Wis. Stat. § 941.29(2) does not require ownership, just mere possession). Furthermore, there are no temporal limitations in this statute. It does not specify what length of time a felon must possess the firearm in order to violate the statute. While to some it may seem unduly harsh that a felon who handles a firearm for a brief period violates this statute, such a result comports with the theory of strict liability. . . . [T]he legislature struck a balance between the possibility of a harsh result to an individual felon and the greater good of protecting the public from felons with firearms. We decline to upset this balance by rewriting the statute with an intent requirement. In the present case, the complaint stated that Black “handled the pistol,” which is sufficient to show possession because such an action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief period of time.

5 Mens rea is “[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.” Black’s Law Dictionary 999 (7th ed. 1999).

This conviction was based on a guilty plea, and factual basis for a plea need not be established to the same degree of certainty as at a trial. Edwards v. State, 51 Wis.2d 231, 236, 186 N.W.2d 193 (1971) (“The standard does not require the evidence in the form submitted at the hearing be admissible at trial or that it be sufficient to convict beyond a reasonable doubt.”). Even less “proof” is needed when there’s a plea bargain, as in this case. Broadie v. State, 68 Wis.2d 420, 423-424, 228 N.W.2d 687 (1975). (“Where[,] as here, the guilty plea is pursuant to a plea bargain, the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea.”) It might be argued that the decision is based on this essentially procedural principle. Still, the court doesn’t rely on this principle (in fact, doesn’t even mention it). Instead, the court seems to take a very broad view of “possesses” under § 941.29.

UPDATE: A subsequent 7th Circuit case, throwing out a federal conviction for felon in possession, comes at the problem of possession from a different angle — where the felon participates in criminal activity with others who wield guns but doesn’t himself “handle” one, U.S. v. Rawlings, 341 F. 3d 657 (7th Cir. 2003): “his relation to the guns does not satisfy the test for constructive possession, which requires power to control.” You can probably reconcile that result with Black, in that Black’s “handling” of the gun suggested sufficient control, especially given the reduced proof attending a guilty plea. Nonetheless, Rawlings very strongly supports a critical limitation — not barred by Black — on the reach of § 941.29. And for discussion on “transitory possession” (which is to say, mere handling) in relation to dominion and control, see U.S. v. Teemer, 394 F.3d 59 (1st Cir 2005) (rejecting such defense); U.S. v. Johnson, 9th Cir No. 05-10708, 8/29/06 (same); but see, U.S. v. Mason, 233 F.3d 619 (D.C. Cir 2001) (recognizing defense). Authority for idea that mere presence of gun not enough to establish possession: U.S. v. Ruiz, 9th Cir No. 04-10308, 8/30/06. Compare, U.S. v. Nevils, 9th Cir No. 06-50485, 11/20/08 (“proximity” to weapon goes only to accessibility, not dominion and control; insufficient evidence, though weapons found on Nevils, given that he was then either asleep or passed out); U.S. v. Cunningham, 3rd Cir No. 06-3899, 2/21/08 (insufficient evidence of knowledge of gun’s presence to support constructive possession).


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