99-3108 In re the Return of Property in: State v. Perez

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“Operating, handling, and intentionally pointing imply active utilization, but the phrase ‘goes armed with’ is the same phrase that appears in the carrying a concealed and dangerous weapon statute, and the latter statute requires nothing more than conscious possession. All these words and phrases fall under the heading ‘Endangering safety by use of a dangerous weapon.'”

“[T]he dictionary definitions of the noun ‘use’ include ‘the power or ability to use something,’ and that meaning of the word is broad enough – ‘elastic’ enough in the language of Judge Nettesheim – to include conscious possession with an ability to use. ‘Going armed with a concealed and dangerous weapon’ clearly adds up to conscious possession with an ability to use. Thus, going armed with a concealed and dangerous weapon is one example of ‘commit[ting] a crime involving the use of the dangerous weapon.'”

Reversed and remanded.

CONCURRING OPINION: Wilcox, J. “While I believe that the State might have wielded its power more judiciously in the present case, it is not my role to question the exercise of prosecutorial discretion.16 Nevertheless, I observe that the purpose of sec. 968.20(1m)(b) is to keep dangerous weapons out of the hands of criminals who may commit future crimes with those weapons. The legislature did not intend to deprive any of the over 500,000 Wisconsin resident sportsmen and sportswomen of their hunting gear. If prosecutors injudiciously seek forfeiture of hunting gear under sec. 968.20(1m)(b), they will undermine public support for sensible laws governing dangerous weapons.”

Review of a Decision of the Court of Appeals, Prosser, J.

Attorneys:

For Appellant: Jeffrey J. Kassel, James E. Doyle, Madison

For Respondent: R. Douglas Stansbury, Cedarburg