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Attempted possession of a firearm by a felon recognized as an offense under Wisconsin law

State v. Wyatt D. Henning, 2013 WI App 15; case activity

The crime of attempted possession of a firearm by a felon is recognized in Wisconsin, distinguishing State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998):

¶14      Turning to the particular language of the felon in possession of a firearm statute, and the case law further explaining the elements of that crime, we see no reason to preclude attempt liability.  Wisconsin Stat. § 941.29(2) states that a person who has been previously convicted of a felony “is guilty of a Class G felony if he or she possesses a firearm … subsequent to the conviction for the felony….”  This offense has two elements: “(1) the defendant has been convicted of a felony; and (2) the defendant possessed the firearm.”  Black, 242 Wis. 2d 126, ¶18.  As we have established, “possession” means that the defendant knowingly had the firearm under his or her actual physical control.  Id., ¶19; Wis JI—Criminal 1343.  Unlike felony murder or reckless homicide, or other crimes with no state of mind element, the felon in possession of a firearm offense requires proof of knowledge.  This makes the offense amenable, even under Briggs, to be charged as an attempted crime.

Briggs held a person could not be charged with attempted felony murder under Wisconsin law because “one cannot attempt to commit a crime which does not itself include an element of specific intent.” Id. at 66. Henning relied on that statement to argue that an offense may be charged as an attempt only when the underlying crime includes intent as an element. The court says that the statement does not establish a general attempt rule or address whether possession crimes may be charged as attempted crimes. (¶¶9).

True or not, the resolution of the issue ultimately comes down to the fact that the element of “possession” has an intent (or knowledge) aspect, and so is amenable to an attempt charge. This reasoning is in keeping with other cases where the court has found intent imported into a crime through a definition or other statutory language. State v. Robins, 2002 WI 65, 253 Wis. 2d 298, ¶¶29-30, 646 N.W.2d 287 (attempted child enticement can be charged because enticement statute contains specific, enumerated, prohibited intents); State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, ¶¶11-13, 653 N.W.2d 284 (sexual contact explicitly requires “intentional touching,” and so supports a charge of attempted assault by contact); State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, ¶¶18-21, 671 N.W.2d 700 (sexual intercourse includes sexual contact, so under Grimm attempted sexual intercourse can be charged);.

The court also held the evidence was sufficient to prove Henning unequivocally intended to possess a firearm, where Henning got into a heated argument with his girlfriend and threatened to kill her; told Kettle, a co-worker, that he was mad at his girlfriend, and asked Kettle whether he had a pistol—though Kettle could not recall Hennings exact words:

¶21      …. Regardless how Henning phrased the question, it is undisputed that Henning made an inquiry about a pistol and that Kettle would not or could not provide Henning with a pistol.  Under these facts, the only reasonable inference that could be fairly drawn is that Henning inquired about a pistol because he was attempting to locate a firearm that he could possess for purposes of threatening or harming his girlfriend.  Moreover, his inquiry about a firearm demonstrates that Hemming formed an intent to possess a firearm and would have but for the fact that Kettle would not or could not provide one….

Finally, the court held that the prosecutor’s misstatement of the evidence in closing did not entitle Henning to a new trial in the interest of justice. (¶¶22-26).

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