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Castle doctrine — dwelling

By: WISCONSIN LAW JOURNAL STAFF//October 1, 2014//

Castle doctrine — dwelling

By: WISCONSIN LAW JOURNAL STAFF//October 1, 2014//

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Wisconsin Court of Appeals

Criminal

Castle doctrine — dwelling

A defendant charged with recklessly endangering safety, who fired at home invaders in a parking lot after they left his home was not entitled to a jury instruction under the “castle doctrine.”

“WISCONSIN STAT. § 939.48(1m)(a)1. imports the definition of the actor’s dwelling set forth at WIS. STAT. § 895.07(1)(h), which states: (h) ‘Dwelling’ means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. ‘Dwelling’ includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements. Key in this definition is the requirement that the part of the lot or site in question is ‘devoted to residential use.’ While the statute lists several parts of a residential lot that are part of ‘dwelling,’ it tellingly does not include a parking lot. See State v. Popenhagen, 2008 WI 55, ¶43, 309 Wis. 2d 601, 749 N.W.2d 611 (a statute that lists specific items may exclude those not listed). We can discern whether or not the list should be extended to include an apartment shared parking lot by looking at the items on the list. The common denominator of driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements as relates to an actor’s ‘home’ is that all are on the homeowner’s lot — property over which the actor has exclusive control. The same would be true of tenants renting a single place of residence. An apartment building parking lot, on the other hand, is shared by all the tenants. It is not exclusive to Chew or ‘devoted to [the] residential use’ of any one tenant. Sec. 895.07(1)(h). While Chew may have had the right to park there, the parking lot was not part of his own dwelling.”

Affirmed.

Recommended for publication in the official reports.

2013AP2592 State v. Chew

Dist. II, Sheboygan County, Bourke, J., Neubauer, J.

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Kassel, Jeffrey J., Madison; DeCecco, Joseph R., Sheboygan

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