Wisconsin Court of Appeals
Felon in Possession of a Firearm — attempt
A defendant can be convicted of attempted felon in possession of a firearm.
“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.”
“We note that it would be absurd to conclude that the legislature did not intend to prohibit felons from attempting to possess firearms. The legislature’s purpose in prohibiting felons from possessing firearms was to protect public safety and to control the conduct of felons because felons are ‘“more likely to misuse firearms.”’ Black, 242 Wis. 2d 126, ¶19 (quoting another source). Obviously, prohibiting felons from attempting to obtain firearms furthers this public safety purpose. Furthermore, taking Henning’s contention to its logical conclusion would mean that a host of other possession crimes could not be charged under the attempt statute, including possession of an electric weapon, machine gun, and other dangerous weapons that have great potential to undermine public safety. Clearly, the legislature could not have intended such a result.”
Recommended for publication in the official reports.
2010AP2449-CR State v. Henning
Dist. IV, Rock County, Fitzpatrick, J., Higginbotham, J.
Attorneys: For Appellant: Ruby, Cole Daniel, Baraboo; For Respondent: Weber, Gregory M., Madison; Sullivan, Richard J., Janesville