State v. Powell
State v. Powell
Opinion of the Court
¶ 1. Sean T. Powell appeals from a judgment convicting him of carrying a concealed and dangerous weapon in violation of Wis. Stat. §§ 941.23 and 939.51(3)(a) (2009-10),
¶ 2. According to the criminal complaint, on June 19, 2009, Powell was charged with one count of misdemeanor carrying a concealed and dangerous weapon and one count of felony bail jumping. The complaint alleged that on June 17, 2009, Officer Joseph Spingola observed a damaged Dodge Ram pull into a parking lot near 5566 North 60th Street, Milwaukee, where Spingola was conducting a business check. The complaint further alleged that Spingola made contact with the passenger in the vehicle, later identified as Powell, and noticed Powell remove a small, black object from his left pant pocket. He then noticed Powell place the object between his seat and the center console. Spingola recovered the object, which turned out to be a small framed, loaded .38 caliber semi-automatic handgun. Powell was subsequently arrested. At the time of his arrest, Powell was on bond in Milwaukee County Circuit Court Case No. 2008CF1621, charging a felony offense of manufacturing or delivering cocaine. A condition of Powell's bond required that he not commit any new offenses.
¶ 3. Powell was tried by a jury in a two-day trial. In the opening instructions, the trial court defined the terms "dangerous weapon" and "firearm" for the jury, stating: "Dangerous weapon means any firearm, whether loaded or unloaded. A firearm is a weapon that acts by force of gun powder."
¶ 4. Three witnesses testified at trial: Spingola; his partner, Officer Kyle Mrozinski; and the State's crime lab witness, Jason Reifschneider. Both of the officers testified as to the events leading to Powell's
¶ 5. Spingola stated that he approached the passenger side of the vehicle and asked Powell for identification. At that point, Spingola stated, Powell reached into his left pocket and "remove[d] a small black object from his waist[band] . . . and he pulled it down on the side of his passenger seat, in between the center console of the vehicle on the side of the seat." Suspecting that Powell had removed a weapon from his pocket, Spingola testified that he asked Powell to step out of the car. Powell did not do so easily, as he attempted to hold onto the bottom of his seat while Spingola attempted to remove him from the vehicle. Powell was finally removed from the vehicle, at which point Spingola stated that he moved the passenger seat forward and noticed a small, fully-loaded, black semi-automatic handgun on the side of the passenger's seat. Spingola specifically identified the gun as an "EE.G. 380 ... a .38 caliber." Both the gun and a picture of the gun were shown to the jury and entered into evidence.
¶ 6. Mrozinski corroborated Spingola's testimony pertaining to the recovery of the concealed weapon and stated that the weapon recovered was a "380 black
¶ 7. At the close of the State's case, Powell, through counsel, moved the trial court for a directed verdict, arguing that the State failed to meet its burden in proving the concealed weapon charge. Specifically, Powell argued that the State failed to prove that the firearm recovered was a "dangerous weapon," as defined by Wis. Stat. § 941.23, because there was no testimony indicating that the firearm acted "by force of gunpowder." The trial court denied the motion, stating that the testimony of the officers and the display of the gun itself, made it "clear that this is, in fact, a firearm as defined by the statute." Powell was found guilty on both charges. This appeal follows.
DISCUSSION
I. Standard of Review.
¶ 8. Powell contends that the State failed to provide evidence sufficient to prove an essential element of the offense, namely, that the weapon seized constituted a dangerous weapon. In reviewing whether the evidence was sufficient to support a conviction, an appellate court must determine whether, after viewing the evidence in the light most favorable to the State, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. LaCount, 2008 WI 59, ¶ 25, 310 Wis. 2d 85, 750 N.W.2d 780 (citation and quotation marks omitted).
¶ 9. Powell argues that for the firearm to constitute a "dangerous weapon" under Wis. Stat. § 941.23(2), the firearm must act by force of gunpowder. Powell relies on Wis JI — Criminal 910, an instruction given to the jury, which defines "dangerous weapon" as "any firearm, whether loaded or unloaded. A firearm is a weapon that acts by force of gunpowder." Because there was no testimony at trial pertaining to whether the firearm operated by force of gunpowder, Powell argues, the State did not meet its burden in proving that Powell concealed a dangerous weapon. Powell is mistaken.
¶ 10. Wisconsin Stat. § 941.23(2) provides that any person, other than those excepted by statute, who carries a concealed and dangerous weapon is guilty of a Class A misdemeanor. Id. "Dangerous weapon" is defined by Wis. Stat. § 939.22(10), in relevant part, as "any firearm, whether loaded or unloaded." Id. Neither statute defines "firearm" further.
¶ 11. The State points out that the definition of firearm provided in Wis JI — Criminal 910 dates back to 1892 when our supreme court decided Harris v. Cameron, 81 Wis. 239, 51 N.W. 437 (1892). Harris was a civil negligence case in which the defendant bought a metallic "Daisy Air-Gun" for his son. Id. at 241. The defendant's son loaned the gun to another child, who
¶ 12. The Harris court did not the address the question of whether the State must provide evidence of a firearm operating by force of gunpowder in criminal proceedings. Since Harris, however, case law has recognized handguns and pistols as "firearms" without requiring the State to provide evidence that the weapons operate by force of gunpowder. In Claybrooks v. State, 50 Wis. 2d 87, 183 N.W.2d 143 (1971), our supreme court addressed the question of whether the trial court's failure to give a jury instruction defining "dangerous weapon" in an armed robbery case warranted a new trial for the defendant. Id. at 88-89. The missing definition was the language provided by Wis. Stat. § 939.22(10) (1971-72). See Claybrooks, 50 Wis. 2d at 93. The court held that the missing instruction was harmless because considerable testimony was taken at
¶ 13. Similarly, in State v. Rardon, 185 Wis. 2d 701, 518 N.W.2d 330 (Ct. App. 1994), we interpreted Wis. Stat. § 941.29 (1993-94), the felon in possession of a firearm statute. See Rardon, 185 Wis. 2d at 702-03. We concluded that a disassembled firearm constitutes a firearm that operates by force of gunpowder. Id. at 706-07. We noted that the State presented testimony that the disassembled firearm could be operational if assembled, but we did not note whether the State presented evidence about whether the firearm acted by force of gunpowder. See id. at 704. Rather, in referencing an unrelated statute defining "firearm" as a " 'weapon that acts by force of gunpowder,'" we held that there was "no question that the [.25 caliber] Raven [semi-automatic] pistol is a weapon that, if operational, 'acts by force of gunpowder.'" Id. at 705 (citation omitted).
¶ 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.
CONCLUSION
¶ 15. Viewing the evidence presented in the light most favorable to the State, we conclude that credible evidence was presented for the jury to determine that the .38 semi-automatic handgun concealed by Powell was a dangerous weapon as defined by Wis. Stat. § 941.23(2) and that the State was not required to
Judgment affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The parties stipulated that Powell knew the terms of his bond required that he not commit a new crime.
We note, however, that with regard to the safe transportation and use of weapons by police officers, Wis. Stat. § 167.31(l)(c) defines "firearm" as "a weapon that acts by force of gunpowder." Id. However, the State was not required to prove that the firearm acted by force of gunpowder under Wis. Stat. § 946.49(1)(b).
See Perkins v. State, 61 Wis. 2d 341, 346, 212 N.W.2d 141 (1973) ("[A] court can take judicial notice of many facts that are matters of indisputable common knowledge.").
Case-law data current through December 31, 2025. Source: CourtListener bulk data.