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Carrying Concealed Weapon: Definition of “Dangerous Weapon” re: “Operated by Force of Gunpowder”

State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity

Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under §  939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded, .38 caliber handgun operated by force of gunpowder, he is entitled to a directed verdict of acquittal. The court rejects the argument, relying on Claybrooks v. State, 50 Wis. 2d 87, 183 N.W.2d 143 (1971) (witnesses’ observations that defendant brandished gun sufficient to establish dangerous weapon element of armed robbery); State v. Rardon, 185 Wis. 2d 701, 518 N.W.2d 330 (Ct. App. 1994) (seemingly: judicial notice taken that pistol in question “is a weapon that, if operational, ‘acts by force of gunpowder'”).

¶14      Essentially, both the supreme court and this court took judicial notice of the fact that it is common knowledge that the guns at issue operated as dangerous weapons because they used gunpowder to fire projectiles.[4]  We conclude, therefore, that neither the statutes nor case law required the jury in this case to separately determine whether the .38 caliber semi-automatic pistol Powell attempted to conceal operated by “force of gunpowder.”  Rather, the jury was required to decide whether the pistol was a “firearm” for the purposes of determining whether it was a dangerous weapon.  Spingola testified in detail as to the circumstances leading to his discovery of the weapon.  Spingola and Mrozinski both identified the gun as a loaded .38 caliber semi-automatic pistol.  Mrozinski and Reifschneider both interchangeably referred to the weapon as a “firearm” and a “gun.”  Further, in weighing the evidence, the jury was permitted to take into account matters of common knowledge, observations and experience in the affairs of life.  See Wis JI—Criminal 195; see also State v. Alexander, 214 Wis. 2d 628, 648, 571 N.W.2d 662 (1997) (“A strength of our jury system is that ‘jurors … bring their experiences, philosophies, and common sense to bear in their deliberations.’”) (citation omitted).  Common knowledge suggests that at this point in time, one would have to be devoid of any media source not to understand that firearms fire bullets as a result of ignited gunpowder.  The operation of firearms is constantly depicted in movies, television, video games and books.  Testimony explaining the obvious, that the pistol operated by force of gunpowder, was not necessary to prove that it was a dangerous weapon.

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